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G.R. No. 181613. November 25, 2009.*

ROSALINDA A. PENERA, petitioner, vs. COMMISSION

ON ELECTIONS and EDGAR T. ANDANAR, respondents.

Election Law; Election Campaigns; The Decision under

reconsideration considers a person who files a certificate of
condidacy already a “candidate” even before the start of the
campaign period; Assailed Decision is contrary to the clear intent
and letter of the law.—Under the Decision, a candidate may
already be liable for premature campaigning after the filing of the
certificate of candidacy but even before the start of the
campaign period. From the filing of the certificate of candidacy,
even long before the start of the campaign period, the Decision
considers the partisan political acts of a person so filing a
certificate of candidacy “as the promotion of his/her election
as a candidate.” Thus, such person can be disqualified for
premature campaigning for acts done before the start of the
campaign period. In short, the Decision considers a person
who files a certificate of candidacy already a “candidate”
even before the start of the campaign period. The assailed
Decision is contrary to the clear intent and letter of the law.
Same; Same; In Lanot v. Comelec, 507 SCRA 114 (2006), a
person who files a certificate of candidacy is not a candidate until
the start of the campaign period; Essential Elements for Violation
of Section 80 of the Omnibus Election Code.—The Decision
reverses Lanot v. COMELEC, 507 SCRA 114 (2006) 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 cam-

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_______________

* EN BANC.

575

paign period has not started when the election campaign or

partisan political activity is committed.
Same; Same; Lanot was decided on the ground that one who
files a certificate of candidacy is not  a candidate until the start of
the campaign period.—Lanot was decided on the ground that one
who files a certificate of candidacy is not a candidate until the
start of the campaign period. This ground was based on the
deliberations of the legislators who explained the intent of the
provisions of RA 8436, which laid the legal framework for an
automated election system. There was no express provision in the
original RA 8436 stating that one who files a certificate of
candidacy is not a candidate until the start of the campaign
period.
Same; Same; The Decision is irreconcilably in conflict with the
clear intent and letter of the second sentence, third paragraph,
Section 15 of Republic Act No. 8436 as amended by Republic Act
No. 9369.—The assailed Decision, however, in reversing Lanot
does not claim that this second sentence or any portion of
Section 15 of RA 8436, as amended by RA 9369, is
unconstitutional. In fact, the Decision considers the entire Section
15 good law. Thus, the Decision is self-contradictory—reversing
Lanot but maintaining the constitutionality of the second
sentence, which embodies the Lanot doctrine. In so doing, the
Decision is irreconcilably in conflict with the clear intent and
letter of the second sentence, third paragraph, Section 15 of RA
8436, as amended by RA 9369.
Same; Same; Republic Act No. 8436 and Republic Act No.
9369 do not consider Penera a candidate for purposes other than
the printing of ballots, until the start of the campaign period.—
Thus, Congress not only reiterated but also strengthened its
mandatory directive that election offenses can be committed by a
candidate “only” upon the start of the campaign period. This
clearly means that before the start of the campaign period, such
election offenses cannot be so committed. When the applicable
provisions of RA 8436, as amended by RA 9369, are read together,
these provisions of law do not consider Penera a candidate for
purposes other than the printing of ballots, until the start of the
campaign period. There is absolutely no room for any other
interpretation.

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Same; Same; A candidate is liable for an election offense only

for acts done during the campaign period, not before.—In layman’s

576

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.
Same; Same; The effective date when partisan political acts
become unlawful as to a candidate is when the campaign period
starts.—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.
Same; Same; 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 it 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.”—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.”

577

CHICO-NAZARIO, J., Dissenting Opinion:

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Election Law; Election Campaigns; As noted in the Decision,

any discussion on the matter of Penera’s criminal liability for
premature campaigning would have been preemptive and nothing
more than obiter dictum.—Penera herself disclosed in her Motion
for Reconsideration that she is the respondent in a criminal case
filed by Edgar T. Andanar for the commission of election offenses
in violation of the Omnibus Election Code, which is docketed as
EO Case No. 08-99. Thus, the pronouncement in the Decision
dated 11 September 2009 that the instant case should concern
only the electoral aspect of the disqualification case finds more
reason. As noted in the Decision, any discussion on the matter of
Penera’s criminal liability for premature campaigning would have
been preemptive and nothing more than obiter dictum.
Same; Same; The conduct of a motorcade during election
periods is a form of election campaign or partisan political activity
falling squarely within the ambit of Section 79 (b) (2) of the
Omnibus Election Code.—As held in the Decision dated 11
September 2009, the conduct of a motorcade during election
periods is a form of election campaign or partisan political
activity, falling squarely within the ambit of Section 79(b)(2) of
the Omnibus Election Code, on “[h]olding political caucuses,
conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a candidate[.]” The
obvious purpose of the conduct of motorcades during election
periods is to introduce the candidates and the positions to which
they seek to be elected to the voting public; or to make them more
visible so as to facilitate the recognition and recollection of their
names in the minds of the voters come election time.
Same; Same; Section 80 of the Omnibus Election Code which
defines the prohibited act of premature campaigning is still good
law despite the passage of Section 15 of Republic Act No. 8436, as
amended.—The ponente takes exception to the above sweeping
and unwarranted reasoning. Not all election offenses are required
to be committed by a candidate and, like the prohibited act of
premature campaigning, not all election offenses are required to
be committed after the start of the campaign period. To reiterate,
Section 80 of the Omnibus Election Code, which defines the
prohibited act of prema-

578

ture campaigning is still good law despite the passage of Section

15 of Republic Act No. 8436, as amended. Precisely, the conduct of
election campaign or partisan political activity before the
campaign period is the very evil that Section 80 seeks to prevent.
ABAD, J., Dissenting Opinion:
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Election Law; Election Campaigns; The fact that Penera was

not yet a candidate before she actually handed in her certificate of
candidacy to the designated Commission on Election official does
not exempt her from the prohibition against engaging in
premature election campaign.—But the fact that Penera was not
yet a candidate before she actually handed in her certificate of
candidacy to the designated COMELEC official does not exempt
her from the prohibition against engaging in premature election
campaign. Section 80 which imposes the ban ensnares “any
person,” even a non-candidate. Thus: SECTION 80. Election
campaign or partisan political activity outside campaign
period.—It shall be unlawful for any person, whether or
not a voter or candidate, or for any party, or association of
persons, to engage in an election campaign or partisan
political activity except during the campaign period: x x x
Essentially, the law makes the prohibition against premature
campaigning apply to “any person” and “any party, or association
of persons.” This means that no one is exempt from the ban. The
mention of the word “candidate” in the first grouping, i.e., “any
person, whether or not a voter or candidate,” merely stresses the
point that even those with direct interest in a political campaign
are not exempt from the ban. Consequently, even if Penera had
not yet filed her certificate of candidacy, Section 80 covered her
because she fell in the category of “any person.”
Same; Same; The ground for her consequent disqualification
—premature campaigning—already accrued by the time she filed
her certificate of candidacy or when the official campaign period
began.—The provision of Section 15 of R.A. 8436, as amended,
that regards Penera as a “candidate” only at the start of the
campaign period on March 30, 2007 did not, therefore, exempt her
from liability as a non-candidate engaging in premature election
campaign. Here, candidate Penera has been found by the
COMELEC to have violated Section 80 when, even before she was
a candidate, she prematurely campaigned for votes for herself.
The ground for her consequent

579

disqualification—premature campaigning—already accrued by

the time she filed her certificate of candidacy or when the official
campaign period began. Consequently, she is disqualified under
Section 68 from continuing as a candidate or, since she has been
elected, from holding on to that office.

MOTION FOR RECONSIDERATION of a decision of the

Supreme Court.
   The facts are stated in the resolution of the Court.

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  Eduardo M. Arriba and Sardillo and Fong Law Office

for petitioner.
  Fernando S. Almeda III for private respondent.

RESOLUTION

CARPIO, J.:
We grant Rosalinda A. Penera’s (Penera) motion for
reconsideration of this Court’s Decision of 11 September
2009 (Decision).
The assailed Decision dismissed Penera’s petition and
affirmed the Resolution dated 30 July 2008 of the
COMELEC En Banc as well as the Resolution dated 24
July 2007 of the COMELEC Second Division. The Decision
disqualified Penera from running for the office of Mayor in
Sta. Monica, Surigao del Norte and declared that the Vice
Mayor should succeed Penera.
In support of her motion for reconsideration, Penera
submits the following arguments:

1. Penera was not yet a candidate at the time of the incident

under Section 11 of RA 8436 as amended by Section 13 of RA
9369.
2. The petition for disqualification failed to submit convincing
and substantial evidence against Penera for violation of Section
80 of the Omnibus Election Code.

580

3. Penera never admitted the allegations of the petition for

disqualification and has consistently disputed the charge of
premature campaigning.
4. The admission that Penera participated in a motorcade is
not the same as admitting she engaged in premature election
campaigning.

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

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campaign period.” These two provisions determine the

resolution of this case.
The Decision states that “[w]hen the campaign period
starts and [the person who filed his certificate of candidacy]
proceeds with his/her candidacy, his/her intent turning into
actuality, we can already consider his/her acts, after
the filing of his/her COC and prior to the campaign
period, as the promotion of his/her election as a
candidate, hence, constituting premature
campaigning, for which he/she may be disqualified.”1
Under the Decision, a candidate may already be liable
for premature campaigning after the filing of the certificate
of candidacy but even before the start of the campaign
period. From the filing of the certificate of candidacy, even
long before the start of the campaign period, the Decision

_______________

1 Decision, p. 23 (Boldfacing and underscoring supplied).

581

considers the partisan political acts of a person so filing a

certificate of candidacy “as the promotion of his/her
election as a candidate.” Thus, such person can be
disqualified for premature campaigning for acts done
before the start of the campaign period. In short, the
Decision considers a person who files a certificate of
candidacy already a “candidate” even before the
start of the campaign period.
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.

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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.

_______________

2 G.R. No. 164858, 16 November 2006, 507 SCRA 114.

582

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.
There is no dispute that Eusebio’s acts of election campaigning or
partisan political activities were committed outside of the campaign
period. The only question is whether Eusebio, who filed his certificate of
candidacy on 29 December 2003, was a “candidate” when he committed
those acts before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 (“RA 8436”) moved the deadline
for the filing of certificates of candidacy to 120 days before election day.
Thus, the original deadline was moved from 23 March 2004 to 2 January
2004, or 81 days earlier. The crucial question is: did this change in the
deadline for filing the certificate of candidacy make one who filed his
certificate of candidacy before 2 January 2004 immediately liable for
violation of Section 80 if he engaged in election campaign or partisan
political activities prior to the start of the campaign period on 24 March
2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot.—The Commission shall
prescribe the size and form of the official ballot which shall
contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or
plebiscite. Under each position, the names of candidates shall be
arranged alphabetically by surname and uniformly printed using
the same type size. A fixed space where the chairman of the Board
of Election Inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of
certificate of candidacy/petition for registration/
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manifestation to participate in the election shall not be

later than one hundred twenty (120) days before the
elections: Provided, That, any elective official, whether national
or local, running for any office other than the one which he/she is
holding in a permanent capacity, except for president and vice-

583

president, shall be deemed resigned only upon the start of the

campaign period corresponding to the position for which he/she is
running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That, for purposes of
the May 11, 1998 elections, the deadline for filing of the certificate
of candidacy for the positions of President, Vice-President,
Senators and candidates under the party-list system as well as
petitions for registration and/or manifestation to participate in the
party-list system shall be on February 9, 1998 while the deadline
for the filing of certificate of candidacy for other positions shall be
on March 27, 1998.
The official ballots shall be printed by the National Printing
Office and/or the Bangko Sentral ng Pilipinas at the price
comparable with that of private printers under proper security
measures which the Commission shall adopt. The Commission
may contract the services of private printers upon certification by
the National Printing Office/Bangko Sentral ng Pilipinas that it
cannot meet the printing requirements. Accredited political
parties and deputized citizens’ arms of the Commission may
assign watchers in the printing, storage and distribution of official
ballots.
To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the serial number on the ballot stub
shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a
photocopying machine, and that identification marks, magnetic
strips, bar codes and other technical and security markings, are
provided on the ballot.
The official ballots shall be printed and distributed to each
city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early
filing of certificates of candidacy is to give ample time for the
printing of official ballots. This is clear from the following
deliberations of the Bicameral Conference Committee:

584

SENATOR GONZALES. Okay. Then, how about the campaign period,

would it be the same[,] uniform for local and national officials?

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THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to

retaining it at the present periods.
SENATOR GONZALES. But the moment one files a certificate of
candidacy, he’s already a candidate, and there are many
prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign
period has not yet began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the
filing of the certificate will not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide
that the filing of the certificate of candidacy will not result
in that official vacating his position, we can also provide
that insofar he is concerned, election period or his being a
candidate will not yet commence. Because here, the reason
why we are doing an early filing is to afford enough time to
prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr.
Chairman, the House Panel will withdraw its proposal and will
agree to the 120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning
or doing partisan acts which apply immediately upon being a
candidate?

585

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention

of this provision is just to afford the Comelec enough time
to print the ballots, this provision does not intend to
change the campaign periods as presently, or rather
election periods as presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject
to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually,
there would be no conflict anymore because we are talking about
the 120-day period before election as the last day of filing a
certificate of candidacy, election period starts 120 days also. So
that is election period already. But he will still not be considered
as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of
printing of official ballots, Eusebio filed his certificate of candidacy on 29
December 2003. Congress, however, never intended the filing of a
certificate of candidacy before 2 January 2004 to make the person filing
to become immediately a “candidate” for purposes other than the
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printing of ballots. This legislative intent prevents the immediate

application of Section 80 of the Omnibus Election Code to those filing to
meet the early deadline. The clear intention of Congress was to preserve
the “election periods as x x x fixed by existing law” prior to RA 8436
and that one who files to meet the early deadline “will still not be
considered as a candidate.”3 (Emphasis in the original)

Lanot was decided on the ground that one who files a

certificate of candidacy is not a candidate until the start of
the campaign period. This ground was based on the
deliberations of the legislators who explained the intent of
the provisions of RA 8436, which laid the legal framework
for an automated election system. There was no express
provision in the origi-

_______________

3 Id., at pp. 147-152.

586

nal RA 8436 stating that one who files a certificate of

candidacy is not a candidate until the start of the campaign
period.
When Congress amended RA 8436, Congress decided to
expressly incorporate the Lanot doctrine into law, realizing
that Lanot merely relied on the deliberations of Congress
in holding that—

The clear intention of Congress was to preserve the “election

periods as x x x fixed by existing law” prior to RA 8436 and
that one who files to meet the early deadline “will still not be
considered as a candidate.”4 (Emphasis supplied)

Congress wanted to insure that no person filing a

certificate of candidacy under the early deadline required
by the automated election system would be disqualified or
penalized for any partisan political act done before the
start of the campaign period. Thus, in enacting RA 9369,
Congress expressly wrote the Lanot doctrine into the
second sentence, third paragraph of the amended Section
15 of RA 8436, thus:

“x x x
For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition for registration/mani-
festation to participate in the election. Any person who files his
certificate of candidacy within this period shall only be
considered as a candidate at the start of the campaign

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period for which he filed his certificate of candidacy:

Provided, That, unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid
campaign period: Provided, finally, That any person holding a
public appointive office or position, including active members of
the armed forces, and officers and employees in government-
owned or -controlled corporations, shall be considered ipso facto
resigned from his/her office and must vacate the same at the start
of the day of the filing of his/her certificate of candidacy.”
(Boldfacing and underlining supplied)

_______________

4 Id., at p. 152.

587

    Congress elevated the Lanot doctrine into a statute by

specifically inserting it as the second sentence of the
third paragraph of the amended Section 15 of RA 8436,
which cannot be annulled by this Court except on the sole
ground of its unconstitutionality. The Decision cannot
reverse Lanot without repealing this second sentence,
because to reverse Lanot would mean repealing this
second sentence.
The assailed Decision, however, in reversing Lanot does
not claim that this second sentence or any portion of
Section 15 of RA 8436, as amended by RA 9369, is
unconstitutional. In fact, the Decision considers the entire
Section 15 good law. Thus, the Decision is self-
contradictory—reversing Lanot but maintaining the
constitutionality of the second sentence, which embodies
the Lanot doctrine. In so doing, the Decision is
irreconcilably in conflict with the clear intent and letter of
the second sentence, third paragraph, Section 15 of RA
8436, as amended by RA 9369.
In enacting RA 9369, Congress even further clarified the
first proviso in the third paragraph of Section 15 of RA
8436. The original provision in RA 8436 states—

“x x x Provided, further, That, unlawful acts or omissions

applicable to a candidate shall take effect upon the start of the
aforesaid campaign period, x x x.”

In RA 9369, Congress inserted the word “only” so that

the first proviso now reads—

“x x x Provided, That, unlawful acts or omissions applicable to a

candidate shall take effect only upon the start of the aforesaid

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campaign period x x x.” (Emphasis supplied)

Thus, Congress not only reiterated but also

strengthened its mandatory directive that election offenses
can be committed by a candidate “only” upon the start of
the campaign period. This clearly means that before the
start of the campaign period, such election offenses cannot
be so committed.
588

When the applicable provisions of RA 8436, as amended

by RA 9369, are read together, these provisions of law do
not consider Penera a candidate for purposes other than
the printing of ballots, until the start of the campaign
period. There is absolutely no room for any other
interpretation.
We quote with approval the Dissenting Opinion of
Justice Antonio T. Carpio:

“x x x The definition of a “candidate” in Section 79(a) of the

Omnibus Election Code should be read together with the amended
Section 15 of RA 8436. A “ ‘candidate’ refers to any person
aspiring for or seeking 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, it is
no longer enough to merely file a certificate of candidacy for a
person to be considered a candidate because “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.” Any person may thus file a certificate of candidacy
on any day within the prescribed period for filing a certificate of
candidacy yet that person shall be considered a candidate, for
purposes of determining one’s possible violations of election laws,
only during the campaign period. Indeed, there is no “election
campaign” or “partisan political activity” designed to promote the
election or defeat of a particular candidate or candidates to public
office simply because there is no “candidate” to speak of prior to
the start of the campaign period. Therefore, despite the filing of
her certificate of candidacy, the law does not consider Penera a
candidate at the time of the questioned motorcade which was
conducted a day before the start of the campaign period. x x x
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.
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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 citizen’s protected freedom

589

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 pre-

_______________

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5 Dissenting Opinion of Justice Antonio T. Carpio, pp. 4-6.

590

mature 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 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

_______________

6 Decision, p. 24.

591

political acts become unlawful as to a candidate is when

the campaign period starts. Before the start of the

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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.
WHEREFORE, we GRANT petitioner Rosalinda A.
Penera’s Motion for Reconsideration. We SET ASIDE the
Decision of this Court in G.R. No. 181613 promulgated on
11 September 2009, as well as the Resolutions dated 24
July 2007 and 30 January 2008 of the COMELEC Second
Division and the
592

COMELEC En Banc, respectively, in SPA No. 07-224.

Rosalinda A. Penera shall continue as Mayor of Sta.
Monica, Surigao del Norte.
SO ORDERED.

Puno (C.J.), Corona, Carpio-Morales, Velasco, Jr.,

Brion, Peralta, Bersamin and Villarama, Jr., JJ., concur.
Chico-Nazario, J., Please see my Dissenting Opinion.
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Nachura, Leonardo-De Castro, Del Castillo, JJ., Joins

the dissent of J. Nazario.
Abad, J., Please see my Dissenting Opinion.

DISSENTING OPINION
CHICO-NAZARIO, J.:
On 11 September 2009, the Court rendered a Decision in
the instant case disqualifying Rosalinda A. Penera from
running as Mayor of Sta. Monica, Surigao Del Norte for
engaging in the prohibited act of premature campaigning.
Penera forthwith filed a Motion for Reconsideration1 of
the above Decision, invoking the following arguments, to
wit:

1) Penera was not yet a candidate at the time of the incident under
Section 11 of Republic Act No. 8436, as amended by Section 13 of
Republic Act No. 9369.2
2) Section 80 of the Omnibus Election Code was expressly repealed
by Republic Act No. 9369.3
3) The petition for disqualification failed to submit convincing and
substantial evidence against Penera for violation of Section 80 of
the Omnibus Election Code.4
 

_______________

1 Rollo, pp. 439-469.

2 Rollo, p. 441.
3 Rollo, p. 452.
4 Rollo, p. 455.

593

4) Penera never admitted the allegations of the petition for

disqualification and has consistently disputed the charge of
premature campaigning.5
5) The admission that Penera participated in a motorcade is not the
same as admitting she engaged in premature election
campaigning.6

    I vote to deny the Motion for Reconsideration.

Penera’s Motion for Reconsideration
The basic issues in the Motion for Reconsideration were
already passed upon in the Decision dated 11 September
2009 and no substantial arguments were raised.
The grounds that: (1) Penera was not yet a candidate at
the time of the incident under Section 11 of Republic Act
No. 8436, as amended by Section 13 of Republic Act No.
9369; (2) Section 80 of the Omnibus Election Code was
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expressly repealed by Republic Act No. 9369; and (3) the

petition for disqualification failed to submit convincing and
substantial evidence against Penera for violation of Section
80 of the Omnibus Election Code are all reiterations of her
previous arguments before the Court and the same had
already been adequately addressed in the Decision dated
11 September 2009.
Incidentally, Penera herself disclosed in her Motion for
Reconsideration that she is the respondent in a criminal
case filed by Edgar T. Andanar for the commission of
election offenses in violation of the Omnibus Election Code,
which is docketed as EO Case No. 08-99.7 Thus, the
pronouncement in the Decision dated 11 September 2009
that the instant case should concern only the electoral
aspect of the disqualification case finds more reason. As
noted in the Decision, any discus-

_______________

5 Rollo, p. 459.
6 Rollo, p. 465.
7 Rollo, p. 455. Under Section 7, Rule 4 of the Commission on Elections
Rules of Procedure, EO stands for Election Offenses.

594

sion on the matter of Penera’s criminal liability for

premature campaigning would have been preemptive and
nothing more than obiter dictum.
With respect to the assertion that Penera never
admitted the allegations of the petition for disqualification
and has consistently disputed the charge of premature
campaigning, the same is utterly without merit. Penera
admitted participating in the motorcade after filing her
COC. What she merely denied and/or refuted were the
minor details concerning the conduct of said motorcade.
Likewise, Penera’s contention that her admission of
participating in the motorcade in this case is not the same
as admitting that she engaged in premature campaigning
deserves scant consideration. Logically, to admit to the
elements constituting the offense of premature
campaigning is to admit to the commission of the said
offense. Precisely, it is the act of participating in the
motorcade after the filing of her COC that constituted the
prohibited act of premature campaigning in the instant
case.
Finally, the claim of Penera that not all motorcades are
designed to promote the election of a candidate is

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unimpressive. Clearly, the context of the discussion on

motorcades in the Decision dated 11 September 2009 was
disregarded. The discussion pertained to motorcades
conducted during election periods by candidates and their
supporters. In such an instance, a motorcade assumes an
entirely different significance and that is to promote a
candidate.
As held in the Decision dated 11 September 2009, the
conduct of a motorcade during election periods is a form of
election campaign or partisan political activity, falling
squarely within the ambit of Section 79(b)(2) of the
Omnibus Election Code, on “[h]olding political caucuses,
conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a
candidate[.]” The obvious purpose of the conduct of
motorcades during election periods is to
595

introduce the candidates and the positions to which they

seek to be elected to the voting public; or to make them
more visible so as to facilitate the recognition and
recollection of their names in the minds of the voters come
election time.
The pretense that the motorcade was only a convoy of
vehicles, which was entirely an unplanned event that
dispersed eventually, does not hold water. After filing their
certificates of candidacy, Rosalinda Penera and the other
members of her political party conducted a motorcade and
went around the different barangays in the municipality of
Sta. Monica, Surigao Del Norte. The motorcade consisted of
two (2) jeepneys and ten (10) motorcycles, which were all
festooned with multi-colored balloons. There was marching
music being played on the background and the individuals
onboard the vehicles threw candies to the people they
passed by along the streets. With the number of vehicles,
the balloons, the background marching music, the candies
on hand and the route that took them to the different
barangays, the motorcade could hardly be considered as
spontaneous and unplanned.
Majority Opinion
Although the majority opinion initially mentions the
above-stated grounds of Penera’s Motion for
Reconsideration, the same were not at all discussed. The
Resolution of the majority purely involves an exposition of
the grounds set forth in the Dissenting Opinion of Justice

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Antonio T. Carpio to the Decision dated 11 September

2009.
At the outset, the majority opinion highlights the
relevant provisions of law defining the meaning of a
candidate.
Under Section 79(a) of the Omnibus Election Code, a
candidate is “any person aspiring for or seeking an
elective public office, who has filed a certificate of
candidacy by himself or through an accredited
political party, aggroupment, or coalition of parties.”
On the other hand, the second sentence in the third
paragraph of
596

Section 15 of Republic Act No. 8436, as amended by

Republic Act No. 9369, states that “[a]ny person who
files his certificate of candidacy within this period
shall only be considered as a candidate at the start
of the campaign period for which he filed his
certificate of candidacy.” The first proviso in the same
paragraph provides that “unlawful acts or omissions
applicable to a candidate shall take effect only upon
the start of the aforesaid campaign period.”
The majority opinion goes on to quote a paragraph in the
Decision dated 11 September 2009, underscoring a portion
of the same as follows:

“When the campaign period starts and said person proceeds

with his/her candidacy, his/her intent turning into actuality, we
can already consider his/her acts, after the filing of his/her
[certificate of candidacy (COC)] and prior to the campaign
period, as the promotion of his/her election as a candidate,
hence, constituting premature campaigning, for which
he/she may be disqualified.”

According to the interpretation of the majority of the

above pronouncement, the Decision dated 11 September
2009 already considers a person who filed a COC a
“candidate” even before the start of the campaign period.
From the filing of the COC, even before the start of the
campaign period, the ponente allegedly considers the
partisan political acts of a person filing a COC “as the
promotion of his/her election as a candidate.”
The majority clearly mistook the import of the above-
quoted portion and read the same out of context. Absolutely
nowhere in the Decision dated 11 September 2009 was it
stated that a person who filed a COC is already deemed a
candidate even before the start of the campaign period.
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To recall, the Court held in its Decision that Section 80

of the Omnibus Election Code, which defines the prohibited
act of premature campaigning, was not repealed, expressly
or
597

impliedly, by Section 15 of Republic Act No. 8436, as

amended.
Section 80 of the Omnibus Election Code reads:

“SECTION 80. Election campaign or partisan political

activity outside campaign period.—It shall be unlawful for any
person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election
campaign or partisan political activity except during the
campaign period: x x x.”

While relevant portions of Section 15 of Republic Act No.

8436, as amended by Republic Act No. 9369, provide:

“SECTION. 15.—Official Ballot.—x x x

xxxx
For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition of
registration/manifestation to participate in the election. Any
person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start
of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions
applicable to a candidate shall take effect only upon the
start of the aforesaid campaign period[.]”

The Court harmonized and reconciled the above

provisions in this wise:

“The following points are explanatory:

First, Section 80 of the Omnibus Election Code, on premature
campaigning, explicitly provides that “[i]t shall be unlawful for
any person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election campaign
or partisan political activity, except during the campaign
period.” Very simply, premature campaigning may be committed
even by a person who is not a candidate.
For this reason, the plain declaration in Lanot that “[w]hat
Section 80 of the Omnibus Election Code prohibits is ‘an election

598

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campaign or partisan political activity’ by a ‘candidate’ ‘outside’

of the campaign period,” is clearly erroneous.
Second, Section 79(b) of the Omnibus Election Code defines
election campaign or partisan political activity in the following
manner:
SECTION 79. Definitions.—As used in this Code:
xxxx
(b)The term “election campaign” or “partisan
political activity” refers to an act designed to promote the
election or defeat of a particular candidate or candidates to
a public office which shall include:
(1) Forming organizations, associations, clubs,
committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or
against a candidate;
(2) Holding political caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose
of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries,
or holding interviews for or against the election of any
candidate for public office;
(4) Publishing or distributing campaign literature or
materials designed to support or oppose the election of any
candidate; or
(5) Directly or indirectly soliciting votes, pledges or
support for or against a candidate.
True, that pursuant to Section 15 of Republic Act No. 8436, as
amended, even after the filing of the COC but before the start of
the campaign period, a person is not yet officially considered a
candidate. Nevertheless, a person, upon the filing of his/her
COC, already explicitly declares his/her intention to run as a
candidate in the coming elections. The commission by such a
person of any of the acts enumerated under Section 79(b) of the
Omnibus Election Code (i.e., holding rallies or parades, making
speeches, etc.) can, thus, be logically and reasonably construed as
for the purpose of promoting his/her intended candidacy.

599

When the campaign period starts and said person proceeds

with his/her candidacy, his/her intent turning into actuality,
we can already consider his/her acts, after the filing of his/her
COC and prior to the campaign period, as the promotion of his/her
election as a candidate, hence, constituting premature
campaigning, for which he/she may be disqualified. x x x”
(Underscoring supplied.)

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The last paragraph of the aforequoted portion of the

Decision dated 11 September 2009 should be read together
with, and qualified by, the paragraph immediately
preceding it. Clearly, the ponente was quite explicit in
stating that, after the filing of the COC but before the start
of the campaign period, a person is not yet considered a
candidate. After filing the COC, however, the commission
by such person of the acts enumerated under Section 79(b)
of the Omnibus Election Code can already be construed as
being for the purpose of promoting his/her intended
candidacy.
Thereafter, it is only at the start of the campaign period,
when said person is already a formal candidate, that the
partisan political acts that he/she committed after the
filing of the COC can already be considered as being for the
promotion of his/her election as a candidate; hence,
constituting premature campaigning.
Reversal of Lanot v. Commission on Elections
The majority likewise ascribes error on the part of the
ponente for reversing Lanot, which held that a person
should be a candidate before premature campaigning may
be committed. Resolved under the auspices of Republic Act
No. 8436,8
 

_______________

8 The relevant provision in Republic Act No. 8436 is Section 11, which
pertinently provides:
 SECTION 11. Official ballot.—x x x
 x x x x
 For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to
participate in the election shall not be later

600

the previous automation law, Lanot was allegedly decided

on the ground that one who files a COC is not a candidate
until the start of the campaign period.
Supposably, Congress wanted to ensure that any person
filing a COC under the early deadline required by the
automated election system would not be disqualified for
any partisan political act done prior to the start of the
campaign period. In enacting Republic Act No. 9369,
Congress expressly wrote the Lanot doctrine into the
second sentence, third paragraph, Sec. 15 of Republic Act
No. 8436, which states that “[a]ny person who files his

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certificate of candidacy within [the period for filing

COCs] shall only be considered as a candidate at the
start of the campaign period for which he filed his
certificate of candidacy.”
The majority, therefore, concludes that the ponente
cannot reverse Lanot without repealing the above sentence,
since to reverse Lanot would mean repealing the said
sentence. The ponente, however, in reversing Lanot does
not claim that the second sentence or any portion of Section
15 of RA 8436, as amended by RA 9369, is unconstitutional.
Thus, the Decision dated 11 September 2009 is supposedly
self-contradictory—reversing Lanot but maintaining the
constitutionality of the second sentence, which embodies
the Lanot doctrine. In so doing, the majority avers that the
majority decision is irreconcilably in conflict with the clear
intent and letter of the second sentence, third paragraph of
Section 15 of Republic Act No. 8436, as amended by
Republic Act No. 9369.
The majority opinion arrives at an erroneous conclusion
based on a faulty premise.

_______________

  than one hundred twenty (120) days before the elections:

x x x: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of
the aforesaid campaign period[.]

601

Lanot was decided on the basis of the requirement

therein that there must be first a candidate before the
prohibited act of premature campaigning may be
committed.
In Lanot v. Commission on Elections,9 Lanot, et al., filed
a petition for disqualification against the then Pasig City
mayoralty candidate Vicente P. Eusebio for engaging in
various forms of election campaign on different occasions
outside of the designated campaign period after he filed his
COC during the 2004 local elections. The Commission on
Elections (COMELEC) Law Department recommended the
disqualification of Eusebio for violation of Section 80 of the
Omnibus Election Code, which recommendation was
approved by the COMELEC First Division. The COMELEC
en banc referred the case back to the COMELEC Law
Department to determine whether Eusebio actually
committed the acts subject of the petition for
disqualification.

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The Court, speaking through Justice Carpio, adjudged

that Eusebio was not liable for premature campaigning
given that the latter committed partisan political acts
before he became a candidate. The Court construed the
application of Section 11 of Republic Act No. 8463 vis-à-vis
the provisions of Sections 80 and 79(a) of the Omnibus
Election Code. Section 11 of Republic Act No. 8436 moved
the deadline for the filing of certificates of candidacy to 120
days before election day. The Court ruled that the only
purpose for the early filing of COCs was to give ample time
for the printing of official ballots. Congress, however, never
intended the early filing of a COC to make the person filing
to become immediately a “candidate” for purposes other
than the printing of ballots. This legislative intent
prevented the immediate application of Section 80 of the
Omnibus Election Code to those filing to meet the early
deadline. The clear intention of Congress was to preserve
the “election periods as x x x fixed by existing law” prior to
Republic Act No. 8436 and that one who files to

_______________

9 G.R. No. 164858, 16 November 2006, 507 SCRA 114.

602

meet the early deadline “will still not be considered

as a candidate.”10
Simply stated, the Court adjudged in Lanot that when
Eusebio filed his COC to meet the early deadline set by
COMELEC, he did not thereby immediately become a
candidate. Thus, there was no premature campaigning
since there was no candidate to begin with. It is on this
ground that the majority reversed Lanot.
The ponente reiterates that the existence of a candidate
is not necessary before premature campaigning may be
committed. Section 80 of the Omnibus Election Code
unequivocally provides that “[i]t shall be unlawful for any
person, whether or not a voter or candidate, or for
any party, or association of persons, to engage in an
election campaign or partisan political activity, except
during the campaign period.” Very specific are the
wordings of the law that the individual who may be held
liable to commit the unlawful act of premature
campaigning can be any person: a voter or non-voter, a
candidate or a non-candidate.
Furthermore, as already previously discussed, Section
80 of the Omnibus Election Code was not repealed by

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Section 15 of RA 8436, as amended by RA 9369. In

construing the said provisions, as well as that of Section
79(a) of the Omnibus Election Code, which defines the
meaning of the term candidate, the majority has settled
that, after the filing of the COC but before the start of the
campaign period, a person is yet to be considered a formal
candidate. Nonetheless, by filing the COC, the person
categorically and explicitly declares his/her intention to run
as a candidate. Thereafter, if such person commits the acts
enumerated under Section 79(b) of the Omnibus Election
Code, said acts can already be construed as for the purpose
of promoting his/her intended candidacy.

_______________

10 Lanot v. Commission on Elections, G.R. No. 164858, 16 November

2006, 507 SCRA 114, 152.

603

Thus, contrary to the majority opinion, the Decision

dated 11 September 2009 is not self-contradictory. The
ponente can reverse Lanot and still uphold the second
sentence, third paragraph of Section 15 of Republic Act No.
8436, as amended.
The majority also stresses that in the enactment of
Republic Act No. 9369, Congress inserted the word “only”
to the first proviso in the third paragraph of Section 11 of
Republic Act No. 8436 so that the same now reads:

“Provided, That, unlawful acts or omissions applicable to a

candidate shall take effect only upon the start of the aforesaid
campaign period.”

Thus, Congress even strengthened its mandatory

directive that election offenses can be committed by a
candidate “only” upon the start of the campaign period.
Accusing the ponente of giving a specious reasoning in
explaining the above proviso, the majority points out to the
basic principle of law that any act is lawful, unless
expressly declared as unlawful. Therefore, the majority
claims that there was no need for Congress to declare in
Section 15 of Republic Act No. 8436, as amended, that
partisan political activities before the start of the campaign
period are lawful. The logical conclusion is that partisan
political acts, if done before the start of the campaign
period, are lawful. According to the majority, any election
offense that may be committed by a candidate under any

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election law cannot be committed before the start of the

campaign period.
The ponente takes exception to the above sweeping and
unwarranted reasoning. Not all election offenses are
required to be committed by a candidate and, like the
prohibited act of premature campaigning, not all election
offenses are required to be committed after the start of the
campaign period. To reiterate, Section 80 of the Omnibus
Election Code, which defines the prohibited act of
premature campaigning is still good law despite the
passage of Section 15 of Republic Act No.
604

8436, as amended. Precisely, the conduct of election

campaign or partisan political activity before the campaign
period is the very evil that Section 80 seeks to prevent.
The majority opinion maintains its objection to the
allegedly strained construction and/or interpretation of the
ponente of the particular provisions involved in this case.
With equal vehemence, however, the ponente adamantly
rejects the majority’s absurd and unwarranted theory of
repeal of Section 80 of the Omnibus Election Code put forth
in both the Dissenting Opinion to the Decision dated 11
September 2009 and the Resolution of the majority.
As the majority repeatedly pointed out, Section 15 of
Republic Act No. 8436, as amended by Republic Act No.
9369, was enacted merely to give the COMELEC ample
time for the printing of ballots. Section 80 of the Omnibus
Election Code, on the other hand, is a substantive law
which defines the prohibited act of premature
campaigning, an election offense punishable with the
gravest of penalties that can be imposed on a candidate,
i.e., disqualification or, if elected, removal from office. If the
majority opinion indignantly rejects the attempts of the
ponente to reconcile the provisions of Section 80 of the
Omnibus Election Code and Section 15 of Republic Act No.
8436, as amended, then why should they insist on
repealing the former provision and not the latter?
The ponente emphasizes that 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, and the
lesser-known or poorer candidates, on the other, by
allowing them to campaign only within the same
limited period—remains. Again, the choice as to who
among the candidates will the voting public bestow the

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privilege of holding public office should not be swayed by

the shrewd conduct, verging on bad faith, of some
individuals who are able to spend resources
605

to promote their candidacies in advance of the period slated

for campaign activities.
However, by virtue of the Resolution of the majority,
premature campaigning will now be officially
decriminalized and, as a consequence, the value and
significance of having a campaign period will now be
utterly negated. Thus, one year, five years or even ten
years prior to the day of the elections, a person aspiring for
public office may now engage in election campaign or
partisan political activities to promote his candidacy, with
impunity. All he needs to have is a very deep campaign war
chest to be able to carry out this shrewd activity.
Indeed, while fair elections has been dealt a fatal blow
by the Resolution of the majority, it is fervently hoped that
the writing of the Decision dated 11 September 2009 and
this Dissenting Opinion will not be viewed as an effort
made in vain if in the future the said Resolution can be
revisited and somehow rectified.
Premises considered, there is no reason to reverse and
set aside the earlier ruling of the Court rendered in this
case.
I, therefore, vote to DENY WITH FINALITY the Motion
for Reconsideration filed by Rosalinda A. Penera on the
Decision dated 11 September 2009.

DISSENTING OPINION

ABAD, J.:

The Facts and the Case

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 Penera’s
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 Elec-
606

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tion Director for Region 13 in SPA 07-224 a petition to

disqualify1 Penera, among others,2 for 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 COMELEC’s 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

_______________

1 Rollo, pp. 53-54.

2 Arcelito Petallo, Renato Virtudazo, Glorina Aparente, Silverio Tajos,
Jose Platil, Medardo Sunico, Edelito Lerio and Sensualito Febra.
3 Rollo, p. 127.

607

their candidates and the positions they sought. One of the

trucks had a public speaker that announced Penera’s
candidacy for mayor.
Petitioner Penera filed before the COMELEC en banc a
motion for reconsideration4 of the Second Division’s July
24, 2007 resolution. The En Banc denied her motion on

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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. On motion for
reconsideration, however, the number of votes shifted in
favor of granting the petition and reversing the ruling of
the COMELEC.

The Issue

The core issue that divided the Court is whether or not

petitioner Penera’s 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.

Discussion

Section 80 of the Omnibus Election Code prohibits any

person, whether a candidate or not, from engaging in
election campaign or partisan political activity except
during the campaign period fixed by law.
Apart from its penal consequence, the law disqualifies
any candidate who engages in premature campaigning
from holding the office to which he was elected. Section 68
of the Code reads:

_______________

4 Id., at pp. 97-108.

5 Id., at p. 48.

608

“SECTION. 68. Disqualifications.—Any candidate who,

in an action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found by
the Commission of having x x x (e) violated any of Sections
80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the
office; x x x.” (Underscoring supplied.)

Since the COMELEC found petitioner Penera guilty of

having led on March 29, 2007 a colorful and noisy
motorcade that openly publicized her candidacy for mayor
of Sta. Monica, this Court held in its original decision that

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the COMELEC correctly disqualified her from holding the

office to which she was elected.
The current majority of the Court claims, however, that
with the passage of Republic Act (R.A.) 9369, a candidate
who campaigns before the official campaign period may no
longer be regarded as having committed an unlawful act
that constitutes ground for disqualification. The majority’s
reasoning is as follows:
a. Section 79 (a) of the Omnibus Election Code
states that a candidate is “any person aspiring for or
seeking an elective public office, who has filed a
certificate of candidacy by himself or through an
accredited political party, aggroupment, or coalition of
parties.”
b. It is a person’s filing of a certificate of
candidacy, therefore, that marks the beginning of
his being a candidate. It is also such filing that marks
his assumption of the responsibilities that goes with
being a candidate. Before Penera filed her certificate
of candidacy on March 29, 2007, she could not be
regarded as having assumed the responsibilities of a
“candidate.”
c. One of these responsibilities is the duty not to
commit acts that are forbidden a candidate such as
campaigning for votes before the start of the
prescribed period for election campaigns. Premature
campaigning is a
609

crime and constitutes a ground for disqualification

from the office that the candidate seeks.
d. But, with the amendment of Section 15 of R.A.
8436 by Section 13 of R.A. 9369, a person’s filing of a
certificate of candidacy does not now automatically
mark him as a “candidate.” He shall be regarded a
“candidate,” says Section 15, only at the start of the
campaign period. Further, the “unlawful acts or
omissions applicable to a candidate shall take effect
only upon the start of the aforesaid campaign period.”
It is significant that before the passage of R.A. 9369 a
candidate for a local office had up to the day before the
start of the campaign period (which in the case of a local
election consists of 45 days before the eve of election day)
within which to file his certificate of candidacy and, thus,
be regarded as a “candidate.” But the need for time to print
the ballots with the names of the candidates on them under
the automated election system prompted Congress to

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authorize the COMELEC to set a deadline for the filing of

the certificates of candidacy long before the start of the
campaign period. Thus, the pertinent portion of Section 15
of R.A. 8436, as amended, provides:

“SECTION 15. Official ballot.—

xxxx
For this purpose [the printing of ballots], the
Commission shall set the deadline for the filing of
certificate of candidacy/ petition for registration/
manifestation to participate in the election. x x x
x x x x”

Evidently, while Congress was willing to provide for

advance filing of certificates of candidacy, it did not want to
impose on those who file early certificates the
responsibilities of being already regarded as “candidates”
even before the
610

start of the campaign period. Thus, the same Section 15

provides further on:

Any person who files his certificate of candidacy within

this period shall only be considered as a candidate at the
start of the campaign period for which he filed his
certificate of candidacy; x x x.

In Penera’s case, she filed her certificate of candidacy on

March 29, 2007. Section 15 does not yet treat her as
“candidate” then. Only at the start of the official campaign
period on March 30, 2007 was she to be considered as such
“candidate.” To emphasize this, Congress provided further
on in Section 15 that an early filer’s responsibility as a
candidate begins only when the campaign period begins.
Thus—

Provided, That, unlawful acts or omissions applicable to

a candidate shall take effect only upon the start of the
aforesaid campaign period; x x x.

The current majority concludes from the above that from

the time R.A. 9369 took effect on February 10, 2007 a
person like petitioner Penera cannot be held liable as a
“candidate” for engaging in premature election campaign
before she filed her certificate of candidacy or even after
she filed one since she may be regarded as a “candidate”
only at the start of the campaign period on March 30, 2007.
Consequently, since she was not yet a “candidate” on
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March 29, 2007 when she went around Sta. Monica

campaigning for votes on her way to appearing before the
election registrar to file her certificate of candidacy, she
cannot be held liable for premature campaigning.
But the fact that Penera was not yet a candidate before
she actually handed in her certificate of candidacy to the
designated COMELEC official does not exempt her from
the prohibition against engaging in premature election
campaign. Section 80 which imposes the ban ensnares “any
person,” even a non-candidate. Thus:
611

SECTION 80. Election campaign or partisan political

activity outside campaign period.—It shall be unlawful for
any person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election
campaign or partisan political activity except during the
campaign period: x x x (Emphasis ours.)

Essentially, the law makes the prohibition against

premature campaigning apply to “any person” and “any
party, or association of persons.” This means that no one is
exempt from the ban. The mention of the word
“candidate” in the first grouping, i.e., “any person,
whether or not a voter or candidate,” merely stresses the
point that even those with direct interest in a political
campaign are not exempt from the ban. Consequently, even
if Penera had not yet filed her certificate of candidacy,
Section 80 covered her because she fell in the category of
“any person.”
The provision of Section 15 of R.A. 8436, as amended,
that regards Penera as a “candidate” only at the start of
the campaign period on March 30, 2007 did not, therefore,
exempt her from liability as a non-candidate engaging in
premature election campaign.
Here, candidate Penera has been found by the
COMELEC to have violated Section 80 when, even before
she was a candidate, she prematurely campaigned for votes
for herself. The ground for her consequent disqualification
—premature campaigning—already accrued by the time
she filed her certificate of candidacy or when the official
campaign period began. Consequently, she is disqualified
under Section 68 from continuing as a candidate or, since
she has been elected, from holding on to that office. Thus:

SECTION 68. Disqualifications.—Any candidate who,

in an action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found by
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the Commission of having x x x (e) violated any of Sections

80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a
candidate, or if he

612

has been elected, from holding the office; x x x

(Underscoring supplied.)

Does this position contravene Section 15 of R.A. 8436, as

amended, that regards Penera as a “candidate” only at the
start of the campaign period on March 30, 2007? It does not
because Section 80, which the Court seeks to enforce, is
essentially intended as a ground for sanctioning “any
person,” not necessarily a candidate, who engages in
premature election campaign.
The real challenge to the current minority position,
however, is the meaning that the Omnibus Election Code
places on the term “election campaign.” “The term ‘election
campaign’ or ‘partisan political activity,’ says Section 79,
“refers to an act designed to promote the election or defeat
of a particular candidate or candidates to a public
office.” The object of the election campaign activity must be
the “election or defeat of a particular candidate.”
When petitioner Penera practically said “vote for me”
during the March 29 motorcade that she led around Sta.
Monica, did she solicit votes for a “particular candidate?”
The current majority holds that since, according to Section
79, a “candidate refers to any person aspiring for or seeking
an elective public office, who has filed a certificate of
candidacy” and since Penera held her vote-solicitation
motorcade before she filed her certificate of candidacy, she
did not engage during the town motorcade in a campaign
for the election of any “particular candidate.”
But this is being too literal. It is like saying that a
woman cannot be held liable for parricide since the penal
code uses the male pronoun in ascribing to the offender the
acts that constitute the crime. Thus, the penal code says:

Art. 246. Parricide.—Any person who shall kill his

father, mother, or child, whether legitimate or illegitimate,
or any of his ascendants, or descendants, or his spouse,
shall be

613

guilty of parricide and shall be punished by the penalty of

reclusion perpetua to death.

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Yet, parricide, as everyone knows, can also be committed

by a woman who shall kill her father, mother, or child, or
her spouse. The spirit of the law intends to punish any
person, male or female, who kills his or her ascendants,
descendants, or spouse. Literalness must yield to evident
legislative intent.
Here, did Congress in enacting R.A. 9369 intend to
abolish or repeal Section 80 of the Omnibus Election Code
that prohibits election campaigns before the start of the
campaign period? It did not. Section 80 remains in the
statute books and R.A. 9369 did not, directly or indirectly,
touch it.
The current majority of course claims, citing Section 15
of R.A. 8436, as amended, that “the effective date when
partisan political acts become unlawful as to a candidate is
when the campaign period starts. The pertinent portion of
Section 15 says:

Provided, That, unlawful acts or omissions applicable to

a candidate shall take effect only upon the start of the
aforesaid campaign period; x x x.

If we were to abide by the view of the current majority,

Congress ordained when it passed the above provision that
it is only for unlawful acts or omissions committed during
the campaign period that candidates could be punished.
Consequently, if candidates take campaign funds from a
foreign government6 or conspire with others to bribe
voters7 just one day before the start of the campaign period,
they cannot be prosecuted. A candidate under the theory of
the current majority can freely commit a litany of other
crimes relating to the election so long as he commits them
before the start of the

_______________

6 Section 96, Omnibus Election Code.

7 Section 261 (b), Omnibus Election Code.

614

campaign period. Surely, R.A. 9369 did not intend to grant

him immunity from prosecution for these crimes.
The more reasonable reading of the provision—that
unlawful acts or omissions applicable to a candidate shall
take effect only upon the start of the campaign period—is
that Congress referred only to unlawful acts or omissions
that could essentially be committed only during the
campaign period. For how could a candidate commit
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unlawful “pre-campaign” acts during the campaign

period?
The unlawful act of engaging in premature election
campaign under Section 80, in relation to Section 79 which
defines the terms “candidate” and “election campaign,” may
be regarded as consisting of three elements:
1. A person acts to promote the election or defeat
of another to a public office;
2. He commits the act before the start of the
campaign period; and
3. The person whose election or defeat the
offender seeks has filed a certificate of candidacy for
the office.
The first two elements could take place when the
offender engages in premature election campaign for the
person whose election or defeat he seeks to promote but
who has not as yet filed his certificate of candidacy.
Whereas, the third element—consisting in the latter
person’s filing his certificate of candidacy—could take place
later, close to the campaign period.
The elements of a crime need not be present on a single
occasion. In B.P. 22 cases, the issuer of the check may have
knowingly issued a perfectly worthless check to apply on
account. But, until the check is dishonoured by the drawee
bank, the crime of issuing a bouncing check is not deemed
committed. The analogy is far from perfect but the point is
that the offender under Section 80 knew fully when she
shouted on the top of her voice, “vote for me as your
mayor!”
615

before she filed her certificate of candidacy that she was

running for mayor. If she says she is not liable because she
is technically not yet a candidate, the people should say,
“Let us not kid each other!”
Congress could not be presumed to have written a
ridiculous rule. It is safe to assume that, in enacting R.A.
9369, Congress did not intend to decriminalize illegal
acts that candidates and non-candidates alike could
commit prior to the campaign period.
Further, current majority’s view may doom the next
generations. Congress enacted Section 80 because,
historically, premature election campaigns begun even
years before the election saps the resources of the
candidates and their financial backers, ensuring
considerable pay-back activities when the candidates are
elected. Such lengthy campaigns also precipitate violence,

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corrupt the electorate, and divert public attention from the

more vital needs of the country.8
Actually, practically all the principal stakeholders in the
election, namely, the voters, the candidates, and the
COMELEC, have since 1969 assumed that premature
election campaign is not allowed. People generally wait for
the campaign period to start before engaging in election
campaign. Even today, after the passage of R.A. 9369,
those aspiring to national offices have resorted to the so-
called “infomercials” that attempt to enhance their
popularities by showing their philosophies in life, what
they have accomplished, and the affection with which
ordinary people hold them. No one has really come out with
ads soliciting votes for any particular candidate or person
aspiring for a particular public office. They are all aware of
Section 80.
Parenthetically, the Supreme Court declared the law
banning premature election campaign constitutional in
Gonzales

_______________

  8 Gonzales v. Commission on Elections, 137 Phil. 471, 490-491; 27

SCRA 835 (1969).

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