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Penera, Rosalinda A. vs. COMELEC and Edgar T. Andanar

Supreme Court En Banc
G.R. No. 181613 November 25, 2009

Petitioner and private respondents were candidates for mayor of the Municipality
of Sta.Monica, Surigao del Norte in the last May 2007 elections. The former filed her
certificate of candidacy on the day before the prescribed campaign period. When she
went to the COMELEC Office for filing she was accompanied by her partymates.
Thereafter, they had a motorcade which was consist of two trucks and ten motorcycles
running around the municipality convincing the residents to vote for her and the other
candidates of their political party.
Due to this, private respondent filed a petition against her alleging premature
campaigning as provided in the Omnibus Election Code Section 80 which says: “Election
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.” She argued that she is not guilty since she was not yet a candidate at that time
and the campaign period has not yet started when the motorcade was conducted.
While the petition was pending in the COMELEC, she was voted as mayor and
took her office thereafter. The COMELEC Second Division decided in favor of the
complainant and found her guilty of premature campaigning. Likewise, when she
appealed in the COMELEC En Banc, the previous decision was affirmed.
Subsequently, she filed with the Supreme Court which decided against her. It held
that the conduct of the motorcade is a form of election campaign or partisan political
activity, falling under Section 79(b)(2) of the Omnibus Election Code which says:
“[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[.]” Furthermore, it was held that she should vacate
the position. Now, she comes for a motion for reconsideration using the same arguments.

Is petitioner guilty of premature campaigning?

No, she is not.
Any act is lawful unless expressly declared unlawful by law. It is enough that
Congress stated that “any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period.” So, it is lawful if done before the start
of the campaign period. This plain language of the law need not be construed further.
Moreover, on the day of the motorcade, she was not yet a candidate for. As what
was decided in the Lanot Case which says that prior to the campaign period, even if the
candidate has filed his/her certificate of candidacy, he/she is not yet considered as a
candidate for purposes other than the printing of ballots. Hence, she cannot be guilty of
premature campaigning for in the first place there is no candidate to talk about. What she
did was an exercise of her freedom of expression.

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 COMELEC En Banc,
respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta.
Monica, Surigao del Norte.

Chico-Nazario, J:
It is obvious that the motorcade was planned to gain more votes from their
constituents. Even if she was not yet a candidate at that time, she can he held guilty of
premature campaigning as an ordinary citizen committing the prohibited act.
Abad, J:
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.