We don’t know if it’s a product of the cleverness of politicians or the stupidity of lawmakers. But with the start of the period for the filing of the certificates of candidacy (CoCs) in the May 2010 elections last Nov. 20, the ban on premature campaigning has become even more ridiculous.

The proliferation of posters, tarpaulins, print ads, infomercials, etc., trumpeting the virtues, achievements and civic causes of politicians has raised a debate on whether it is legally permissible for them to engage in election campaign or partisan political activity before the campaign period starts. Which is really premature campaigning prohibited by Sec. 80 of the Omnibus Election Code (Republic Act 881) that says: “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.” Sec. 79(b) refers to “election campaign” and “partisan political activity” as any “act designed to promote the election or defeat of a particular candidate or candidates to a public office.” Who believes politicians claiming that these posters, tarpaulins, infomercials, etc., whatever the messages, are not meant to promote their election?

But Comelec officials say only candidates can commit this offense because RA 881 Sec. 79(a) defines a candidate as “any person … who has filed a certificate of candidacy.” In other words, one may do what Sec. 80 prohibits, which is to promote his candidacy outside the campaign period (for next year’s elections, from Feb. 10, 2010 to May 8, 2010 for presidential, vice presidential and senatorial bets; and from March 26, 2010 to May 8, 2010 for congressional and local bets), but once he officially becomes a candidate, he cannot do it anymore until the campaign period begins.

The recent Supreme Court decision in Penera vs Comelec, upholding the ban on premature campaigning by a very slim 8-7 majority vote, only added to the debate instead of resolving the question. One view holds that premature campaigning is now an “impossible offense” because of an amendment to RA 881 in RA 9369, which says, a person who files his certificate of candidacy “shall only be considered a candidate at the start of the campaign period.” Election lawyer Romulo Macalintal says the Comelec cannot apply the Penera decision yet because there is a motion for reconsideration and it is not yet final and executory.

In fact, the Penera case is a landmark decision that has raised a lot of eyebrows. Given that two more justices are going to retire soon, some legal experts like the constitutionalist Fr. Joaquin Bernas, SJ, doubt if the decision would hold for long.

Comelec Chair Jose Melo has admitted that Comelec officials might find it hard to pin down candidates for premature campaigning. When it comes to premature campaigning, he said, the rule of thumb is, if there is no solicitation to vote, there is no problem.

But the ban on premature campaigning was adopted supposedly to curb excessive campaign spending and, in the words of the Supreme Court, “to level the playing field between the popular or rich candidates, on one hand, and the lesser-known or poorer candidates, on the other.” Instead the limited campaign period benefits the popular because it gives the lesser-known hardly enough time to introduce themselves to the public and sell their platforms. This explains the success show biz people as well as political dynasties enjoy in political contests. And as shown by the plethora of posters, tarpaulins, infomercials etc. that have been coming out even before the campaign period started, Sec. 79(a) gives the moneyed and those in power, with their vast resources, a window to skirt and frustrate the intent of Sec. 80.

From Melo’s statements it looks as if the Comelec finds enforcing Sec. 80 an almost impossible task. Thus, people cannot expect even a brief relief from the eyesores that assail them wherever they may be, whether at home watching TV or in streets draped with posters and tarpaulins of politicians. Congress might as well just scrap this particular provision of the election law, and come up with new legislation outlawing the visual pollution.