A case of premature campaigning | Lifestyle.INQ

OCTOBER 27, 2022

With elections coming up next year, some politicians are perceived to be indirectly campaigning this early, so the following case is timely.  It was brought in 2004 before the Supreme Court whose en banc decision was penned by Associate Justice Adolfo S. Azcuna. Azcuna retired from the high tribunal on February 15, 2009.  The cum laude graduate of the Ateneo de Manila Law School in 1962 was admitted to the Philippine Bar in 1963 after placing fourth in the bar exams.

Before he filed his senatorial bid on Dec. 30, 2003 under the partylist Alyansa ng Pag-asa, former Solicitor General Francisco I. Chavez entered into formal agreement as endorser for three companies. As a result, three billboards were set up along the Balintawak Interchange of the North Expressway, with one showing him promoting Konka plastic products and two others showing him endorsing 96 North clothes. A fourth billboard was put up along Roxas Boulevard and showed him endorsing the game and amusement parlors of G-Box.

On Jan. 6, 2004, the Commission on Elections (Comelec) headed by Chairman Benjamin N. Abalos issued Resolution No. 6520 containing Section 32 which Chavez would contest later. Section 32 banned propaganda material and any advertisements that showed the image or bore the name of a candidate for public office, and ordered the candidate and media companies using the ads to remove them within three days after the effectivity of the implementing rules. Otherwise, the candidate and the media companies shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code.

On Jan. 21, 2004, the Comelec’s Law Department ordered Chavez to comply with Section 32 by removing his four billboards. In response, Chavez requested the Comelec to exempt him from Section 32, contending that the billboards were mere product endorsements and could not be construed as propaganda materials for premature campaigning.

When the Comelec still ordered Chavez to remove the billboards pending the approval of his request for exemption, the former SolGen filed a petition urging the Supreme Court to declare Section 32 unconstitutional on the grounds that it is 1) a gross violation of the non-impairment clause; 2) an invalid exercise of police power; 3) in the nature of an ex post facto law; 4) contrary to the Fair Elections Act, and 5) invalid due to overbreadth.

Named as respondents were Comelec Chairman Abalos, Esmeralda Amora-Ladra in her capacity as Acting Director IV, National Capital Judicial Region of Comelec and the Solicitor General.

In the High Court’s decision, Justice Azcuna wrote that the primary objectives of the assailed provision are to prohibit premature campaigning and to level the playing field for lesser known and poorer candidates by preventing popular or rich candidates from enjoying undue advantage in exposure and publicity due to their resources and fame.

Far from being purely product endorsements, Justice Azcuna noted, the billboards featuring Chavez’s name and image assumed partisan political character because they indirectly promoted his candidacy. Under the Omnibus Election Code, “election campaign” or “partisan political activity” is defined as an act designed to promote the election or defeat of a particular candidate…” One of the activities included under this definition (are acts) “(d)irectly or indirectly soliciting votes, pledges or support for or against a candidate.”

Although Chavez signed the contracts to endorse certain products when he was still a private individual with the right to lend his name and image to these products, the moment he filed his certificate of candidacy for senator, the billboards assumed a political color, the High Court maintained.

Chavez also argued that Section 32 is an invalid exercise of police power on the part of the Comelec because the billboards, while they show his name and image, do not at all announce his candidacy for any public office nor solicit support for his candidacy from voters.  The billboards, he claimed, are mere product endorsements and not election propaganda so prohibiting their exhibition to the public is not within the scope of the Comelec’s powers.

However, the Court took a contrary view.  Defining police power as an inherent attribute of sovereignty to prescribe regulations to promote the health, morals, peace, education, good order, safety, and the general welfare of the people, the Court said that to determine the validity of a police measure, two questions must be asked: 1) Does the interest of the public in general, as distinguished from those of a particular class, require the exercise of police power? and 2) Are the means employed reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals?

As for Chavez’s contention that Section 32 of Resolution No. 6520 violates the Constitutional clause that protects contracts and vested rights from being violated by a subsequently adopted law, the Court ruled that this non-impairment clause must yield to the loftier purposes of Government. In this case, the State has the duty to safeguard public interest by providing equal opportunity for individuals to run for public office without regard to financial resources at their disposal.

Justice Azcuna noted, furthermore, that the contracts signed by Chavez provide that his photograph and image shall be used in whatever form or manner “in keeping with norms of decency, reasonableness, morals and law.” (underscoring supplied)

Chavez also maintained that Section 32 of the Comelec resolution is in the nature of an ex post facto law because it makes an individual criminally liable for not removing such advertisement, even if the act was clearly legal at the time the ad was exhibited.

Justice Azcuna pointed out, however, that the offense defined in the assailed provision is not the putting up of propaganda materials, billboards, posters, streamers, ads, etc. featuring the name or image of an individual who subsequently becomes a candidate for public office.  Nor does it prohibit or consider an offense the entering of contracts for such propaganda materials by the individual who subsequently runs for public office.

The offense, as expressly prescribed in the assailed provision, is the non-removal of the propaganda materials three days after the effectivity of Comelec Resolution No. 6520.  Failure to remove such propaganda materials after the given period makes the individual liable for premature campaigning under Section 80 of the Omnibus Election Code.  Since there is nothing in the assailed provision to indicate that it shall operate retroactively, it is not an ex post facto law in this case, Azcuna maintained.

Chavez then contended that Section 32 violates the Fair Elections Act that permits billboards as lawful election propaganda. Justice Azcuna found this argument untenable.  As the former SolGen correctly pointed out, Section 32 does not prohibit billboards as a form of lawful election propaganda but only regulates their use to prevent premature campaigning and to level the playing field for all candidates. Moreover, by regulating the use of election propaganda materials, Azcuna wrote, the Comelec is merely doing its duty under the Fair Elections Act, Sections 3 and 13 which provide that all election propaganda are subject to the Comelec’s regulation and supervision.

Chavez argued that Section 32 is invalid because of overbreadth, as he claimed that it went beyond what is necessary to accomplish the law’s valid objective. Justice Azcuna said that on the contrary, the provision is limited in its operation both as to time and scope.  It only disallows the display of a person’s propaganda materials and ads after he has filed a certificate of candidacy and before the start of the campaign period.

The Supreme Court therefore dismissed Chavez’s petition on August 31, 2004 and declared valid and constitutional Section 32 of Comelec Resolution No. 6520.  Chief Justice Hilario G. Davide and nine Associate Justices concurred with Associate Justice Azcuna’s decision.  The four other Associate Justices were on official leave.

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