SUMMARY:
announcing their candidacies and requesting people for votes. Affidavits of
FACTS:
• Penera filed her certificate of candidacy for the office of Mayor of Sta.
Monica, Surigao del Norte on 29 March 2007. She conducted a motorcade on the
same day. The campaign period for local officials began only on 30 March 2007 and
ended on 12 May 2007.
• COMELEC Second Division: Penera disqualified from running for the
office of Mayor for premature campaigning. Vice Mayor should succeed Penera.
DOCTRINE FIRST CASE: A person who files a certificate of candidacy is already
a “candidate” even before the start of the campaign period.
When 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.
She was disqualified from running by COMELEC for premature campaigning.
DOCTRINE MR:
SC reversed. Penera was not yet a “candidate” when she conducted a motorcade,
even if such constitutes election campaigning or partisan political activities.
Therefore the new Doctrine: A person who files a certificate of candidacy is not a
candidate until the start of the campaign period.
A candidate is liable for an election offense only for acts done during the campaign
period, not before.
Rosalinda Penera v. COMELEC & Edgar Andanar
Chico-Nazario | September 11, 2009
FACTS:
Rosalinda Penera and Edgar Andanar were mayoralty candidates in Sta. Monica
during the 14 May 2007 elections.
Andanar filed before the Office of the Regional Election Director (ORED), Caraga
Region a Petition for Disqualification against Penera, as well as the candidates for
Vice-Mayor and Sangguniang Bayan who belonged to her political party (Partido
Padajon Surigao), for unlawfully engaging in election campaigning and partisan
political activity prior to the commencement of the campaign period.
Penera and partymates allegedly went around different barangays in Sta Monica
individuals who witnessed the incident were attached to the complaint.
Only Penera filed an answer. She denied the charge of premature campaigning but
admitted to the ff (she later denies these admissions in her Motion for
Reconsideration):
1. Motorcade (2 trucks (in the affidavits and Penera's Position paper, these
were jeepneys), many motorcycles with balloons and posters/banners containing
names and pictures and the municipal positions, candidates throwing candies to
residents when they went from brgy to brgy) on that day but this was usual practice
in nearby cities where filing of CoC's are preceded by motorcade which soon
dispersed after the filing
2. They only had marching music in the background and a grand standing for
the purpose of raising hands of the candidates in the motorcate. There was no speech.
Penera cites Barroso v. Ampig where the SC supposedly ruled that a motorcade
during the filing of CoC was not a form of campaigning.
After the parties submitted their position papers, records of the case were transmitted
to COMELEC Manila and raffled to the 2nd Division.
Meanwhile, Penera was proclaimed duly elected Mayor of Sta. Monica.
COMELEC 2nd division ruled against Penera, disqualifying her as mayoralty
candidate because of premature campaigning. It said that reliance on the Ampig case
failes because in that case the issue was WON defect of a lack of certification for
non-forum shopping should result to dismissal of an election case. Nothing in that
case dealt with similar acts of premature campaigning. Commissioner Tuason wrote
a separate opinion in which he concurred with the ponente. He stressed that, indeed,
Penera should be made accountable for her actions after the filing of her COC on 29
March 2007. Prior thereto, there was no candidate yet whose candidacy would have
been enhanced by the premature campaignings. Commissioner Rene Sarmiento
dissented saying that evidence submitted was insufficient (photocopy of pictures of
trucks didn't show what was actually happening, and the affidavits seemed to be
written by the same person because of similar sentence construction.)
COMELEC en banc denied her motion for reconsideration. Her new arguments in
the MR can no longer be considered since they were not presented in her Position
papers.
(New arguments: pictures and affidavits (taken ex-parte) mere photocopies and were
not authenticated, she did not make any admission on the factual matters in the
resolution, that the motorcade was actually part of dispersal of supporters as their
transportation back to their respective barangays).

COMELEC en banc ruled that such pictures and her admissions were sufficient
evidence of her premature campaigning. Commissioner Sarmiento reiterated his
dissent.
ISSUES:
ISSUE 1. WON COMELEC en banc committed GAD. (No. Its resolutions were
based on sufficient evidence – the photos and the affidavits as well as Penera's
admissions in her Position Paper.)
ISSUE 2. WON Penera committed premature campaigning in violation of S. 80
and S. 68 of the Omnibus Election Code. (YES. The motorcade is a form of
premature campaigning.)
ISSUE 3. As argued by the dissenting opinion (J. Carpio), WON premature
campaigning can only be committed by a candidate and thus may not be
committed anymore since RA 9369 amended OEC Section 15 by saying that
those who file their CoC's are only considered as candidates during the
campaign period. (No. This ponencia tried so very hard to counter J. Carpio's
dissent which is basically the Nov. 25 decision (the next case).)
ISSUE 4. WON Andanar can succeed Penera as Mayor of Sta. Monica. (No.
LGC 44 – Vice Mayor succeeds.)
ISSUE 1. WON COMELEC en banc committed GAD. (No. Its resolutions were
based on sufficient evidence – the photos and the affidavits as well as Penera's
admissions in her Position Paper.)
The said COMELEC Resolutions are sufficiently supported by substantial evidence,
meaning, such evidence as a reasonable mind might accept as adequate to support a
conclusion. Penera is raising only questions of fact and the findings of COMELEC
are supported by substantial evidence.
ISSUE 2. WON Penera committed premature campaigning in violation of S. 80 and
S. 68 of the Omnibus Election Code. (YES. The motorcade is a form of premature
campaigning.)
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: Provided, That political parties
may hold political conventions or meetings to nominate their official candidates
within thirty days before the commencement of the campaign period and forty-five
days for Presidential and Vice-Presidential election.
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 xxx (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. Any
person who is a permanent resident of or an immigrant to a foreign country shall not
be qualified to run for any elective office under this Code, unless said person has
waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.
The conduct of a motorcade 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 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. A motorcade is a procession
or parade of automobiles or other motor vehicles. Unmistakably, motorcades are
undertaken for no other purpose than to promote the election of a particular
candidate or candidates.
The fact that no speech was made or that the vehicles transported the supporters back
to their respective barangays does not mean that Penera et. al. did not campaign
prematurely.
For violating Section 80 of the Omnibus Election Code, proscribing election
campaign or partisan political activity outside the campaign period, Penera must be
disqualified from holding the office of Mayor of Sta. Monica.
ISSUE 3. As argued by the dissenting opinion (J. Carpio), WON premature
campaigning can only be committed by a candidate and thus may not be committed
anymore since RA 9369 amended OEC Section 15 by saying that those who file their
CoC's are only considered as candidates during the campaign period.
The basis of the dissenting opinion is Sec. 15 of RA 8436 as amended by RA 9369
which says.
SECTION.15. Official Ballot. xxxx (shortened)
xxx 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 effect only upon the start of the aforesaid campaign period ... xxx
In Lanot v. COMELEC, the court held that the election campaign or partisan
activity, which constitute the prohibited premature campaigning, should be designed
to promote the election or defeat of a particular candidate or candidates. Under
present election laws, while a person may have filed his/her COC within the
prescribed period for doing so, said person shall not be considered a candidate until
the start of the campaign period. Thus, prior to the start of the campaign period, there
can be no election campaign or partisan political activity designed to promote the
election or defeat of a particular candidate to public office because there is no
candidate to speak of.
SC disagrees. RA 9369 does not contain an express repeal of S. 80 of the OEC. An
express repeal is one wherein a statute declares, usually in its repealing clause, that a
particular and specific law, identified by its number or title, is repealed. Absent this
specific requirement, an express repeal may not be presumed.
Even if the title of RA 9369 mentions that it amends BP 881 (OEC), it doesn't repeal
nor does it expressly amend S. 80. S. 46 of RA 9369 is merely a general repealing
clause. To repeal S. 80, a specific repealing clause is needed.
Sec. 46. Repealing Clause. All laws, presidential decrees, executive orders, rules and
regulations or parts thereof inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.
Implied repeals are disfavored. To SC: there is no absolute and irreconcilable
incompatibility with S. 15 of RA 9369 and S. 80 of the OEC.
Furthermore:
1. A violation of S. 80 may be committed by any person, whether or not a
voter or candidate. So Lanot v. COMELEC is erroneous when it declared that
premature campaigning may only be committed by candidates.
2. A person who files his CoC signifies his intent to run as a candidate for a
position. When the campaign period starts and he proceeds with his candidacy, such
intent is turned into actuality. Thus her acts before the campaign period considered as
“election campaign” or “partisan political activity” which are designed to promote
him or defeat an opponent may be sufficient to violate S. 80.
3. The fact that a person may only be considered as a candidate during the
campaign period does not mean that he can only commit premature campaigning
during the campaign period.
Rationale for prohibition of premature campaigning in Chavez v. COMELEC – to
level the playing field between rich and poor candidates by allowing them to
campaign only within the same limited period. That premature campaigning merits
disqualification is a recognition that it is a pernicious act. Thus the Dissenting
Opinion cannot be too quick to pronounce the implied repeal of S.80 rendering
premature campaigning an impossibility and therefore an ineffective prohibition.
The Dissenting Opinion further expresses the fear that pursuant to our theory, all the
politicians with infomercials prior to the filing of their COCs would be subject to
disqualification, and this would involve practically all the prospective presidential
candidates who are now leading in the surveys. This fear is utterly unfounded. It is
the filing by the person of his/her COC through which he/she explicitly declares
his/her intention to run as a candidate in the coming elections.
ISSUE 4. WON Andanar can succeed Penera as Mayor of Sta. Monica. (No. LGC 44
– Vice Mayor succeeds.)
The well-established principle is that the ineligibility of a candidate receiving
majority votes does not entitle the candidate receiving the next highest number of
votes to be declared elected.
SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. If a permanent vacancy occurs in the office of the xxx
mayor, the x x x vice-mayor concerned shall become the x x x mayor.
xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective local
official fills a higher vacant office, refuses to assume office, fails to qualify or is
removed from office, voluntarily resigns, or is otherwise permanently incapacitated
to discharge the functions of his office. (Emphases ours.)
Disposition: Penera petition denied.
MR:
PENERA v. COMELEC, ANDANAR
November 25, 2009 | Carpio, J.
 Penera filed a motion for reconsideration arguing that (i) she was not yet a
candidate at the time of the incident; (ii) the petition for disqualification failed to
submit convincing and substantial evidence; (iii) she consistently disputed the
charge of premature campaigning; and (iv) her admission of having participated
in a motorcade is not the same as admitting the charge.
RULING: MFR granted. SC Decision promulgated on 11 September 2009 and the
COMELEC Resolutions are set aside. Penera shall continue as Mayor of Sta.
Monica, Surigao del Norte.
Whether Penera is guilty of premature campaigning – NO. 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.
Whether Penera is already a candidate after she filed her COC but before the
start of the campaign period – NO. A person who files a certificate of candidacy
is not a candidate until the start of the campaign period.
[The discussion of the Court focused on Lanot v. COMELEC because it was ruled
that the SC Decision of 11 September 2009 is contrary to the clear intent and letter of
the law. Note that the Lanot doctrine was expressly incorporated into law when
Congress enacted RA 9369.]
DISCUSSION on Lanot v. COMELEC
 Brief summary of facts: Eusebio filed his COC on 29 December 2003. The
deadline for filing COCs was moved from 23 March 2004 to 2 January 2004. He
committed acts of election campaigning or partisan political activities before the
start of the campaign period on 24 March 2004. The Court held that he was not
yet a “candidate” when he committed those acts. Based on the deliberations of
the legislators, one who files a certificate of candidacy is not a candidate until
the start of the campaign period. The only purpose for the early filing of
COCs under Section 11 of RA 8437 is to give ample time for the printing of
official ballots.
 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; and (3) the act is done outside the
campaign period.
o 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.
 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. 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.
 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.
Deliberations of the Bicameral Conference Committee:
o THE CHAIRMAN: 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.
 Election offenses can be committed by a candidate only upon the start of the
campaign period. Before the start of the campaign period, such election
offenses cannot be committed.
AS APPLIED
 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. [See notes for provisions]
 Quoting with approval Justice Carpio’s dissent in the Decision: “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.”
 It is a basic principle of law that any act is lawful unless expressly declared
unlawful by law. 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
effective date when partisan political acts become unlawful as to a
candidate is when the campaign period starts.
DISSENTING OPINIONS
Chico-Nazario, J.
 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.
 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.
 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. 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 term “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.
 Section 80 of the Omnibus Election Code.
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: Provided, That political
parties may hold political conventions or meetings to nominate their official
candidates within thirty days before the commencement of the campaign period
and forty-five days for Presidential and Vice- Presidential election.

Abad, J.
 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. Section 80 which imposes the ban ensnares “any person,” even a non-
candidate.
 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.

NOTES:
 RA 8436, Section 15 as amended by RA 9369, Section 13
“x x x For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition for 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: 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.”

 Section 79(a) of the Omnibus Election Code.