It’s not unlawful, but is it right?

Not many are aware of it, except maybe for some well-informed election lawyers and their moneyed clients. Per the Commission on Elections’ (Comelec) recent admission, “premature campaigning” is no longer an election offense. One landmark Supreme Court ruling (Lanot v. Comelec), lucidly penned by former associate justice Antonio Carpio, found its way into the 2007 amendment (Republic Act No. 9369) of the election law, practically nullifying premature campaigning as an electoral offense. That crucial amendment was subsequently affirmed in 2009 in another high court ruling, Penera v. Comelec, also written by Carpio.

The reasoning is simple enough and goes like this: A candidate becomes liable for election offenses only upon the start of the designated campaign period. Before the official campaign begins, there is no candidate to speak of, and therefore no election offense with which he/she may be charged.

Before 2007, under the Omnibus Election Code, it was taken for granted that people aspiring for an elective position, who resort to acts promoting their candidacy before they file their certificate of candidacy and before the start of the official campaign period, risked being charged with premature campaigning once they file their COCs. The encompassing tone of the law (particularly Sections 79 and 80) struck fear in the hearts of politicians who could face disqualification as candidates, or even removal after they have been elected to office. It deterred those whose financial resources enabled them to promote their candidacies long before the official campaign season in order to gain a head start over their rivals. As defined in the Election Code, premature campaigning included acts like: (1) forming organizations or groups for the purpose of soliciting votes or launching a campaign for or against a candidate; (2) holding caucuses, meetings, or assemblies for the purpose of soliciting votes or conducting propaganda against a candidate; (3) making speeches or commentaries or holding interviews for or against a candidate for public office; (4) publishing or distributing campaign materials to support or oppose a candidate; (5) directly soliciting pledges or support for or against any candidate.

Excluded, however, from the scope of the law are those very same acts done in the pursuit of a nomination for candidacy under a political party or coalition. Also excluded are public expressions of opinion or discussions of political issues in a forthcoming election, as well as discussions of attributes in praise or criticism of probable candidates who are being considered for nomination by a party or convention.

The foregoing exclusions are themselves so broad as to effectively cancel all the prohibitions enumerated in the code’s preceding paragraphs. This palpable ambivalence appears to attest to its authors’ vague awareness of the possible threat the law might pose to freedom of speech and expression. Not only that. In the first place, what is the point in making a distinction between the promotion of a candidacy and the pursuit of a nomination? Where does one draw the line?

The intent to prohibit premature campaigning enshrined in the Omnibus Election Code is clear and laudable. It is the manner of embodying that intent into a reasonable law that is complex. We see this difficulty surfacing time and again on other fronts. We noted it first in the failure to craft an acceptable law that incorporates the constitutional directive banning political dynasties. We have seen it, too, in the routine violations of the democratic spirit behind the party list law, as exemplified by the hijacking of sectoral parties by professional politicians.

In both instances, as in the law against premature campaigning, legislators have seemed unwilling or unable to muster sufficient time, energy, and eloquence to craft a coherent law that is at least one step ahead of their colleagues’ chronic inclination to create loopholes and test the outer limit of every law. In an earlier time, when there were fewer written laws to govern the conduct of our national affairs, the unwritten norms of delicadeza and sense of shame deterred the powerful from abusing their privileges. These tacit understandings provided sufficient guidance for everyone on how to behave in many unruled areas of social life. Today, in the midst of an abundance of written laws, those who wield power are content to cite the law to assure themselves and everyone else that what they are doing is lawful because it is not expressly prohibited by law.

But we ought to be asking: Is it right? Is it proper? And, yes, is it moral? Of course, politicians will say that in matters political, the final arbiters of what is acceptable are the voters themselves. In that case, we should ask our people: Do we really want to see the posters and billboards of our politicians’ faces plastered all over our communities all the time? Are we content to see husband-and-wife or parent-and-child teams run the collective affairs of our towns and provinces? Is our nation so bereft of leaders that its legislature can only be drawn from a handful of political families? Is this how we want our country to be governed?

I say: If we cannot stop premature campaigners, political dynasties, and abusers of the party list through the law, we can still do so through the ballot. But first, we must begin by shaming them, assuming they’re still capable of feeling shame.

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