HOUSE OF REPRESENTATIVES
RECEIVED

SEVENTEENTH CONGRESS OF THE REPUBLIC) ave._3.0
OF THE PHILIPPINES )

First Regular Session )

REGISTRATION UNIT

HOUSE OF REPRESENTATIVE$_ BILLS AND INDEX SERVICE

H.B. No. G65

Introduced by Representative Herminio Harry L. Roque Jr.

AN ACT
AMENDING SECTIONS 79, 80 AND 81 OF BATAS PAMBANSA BILANG 881
OTHERWISE KNOWN AS THE “OMNUBUS ELECTION CODE
OF THE PHILIPPINES”

EXPLANATORY NOTE

Premature campaigning, which is an election offense, simply means
electioneering conducted before the official campaign period. It is prohibited under
Section 80 of Batas Pambansa Blg. 881 aka the “Omnibus Election Code”. However,
in the highly controversial 2009 case of Pefiera v. Commission on Elections, the
Supreme Court, by a split vote of 8-7, ruled in effect that the offense of premature
campaigning has already been repealed by Republic Act No. 8436! or the new Poll
Automation Law, as amended.

Because of the Pejiera case, some wealthy senatoriables have started taking out
campaign advertising in both traditional and social media. Some senatoriables, who
are either incumbent elective or appointive officials, are even using public funds to

advertise themselves under the guise of infomercials. On the other hand, to be

"An Act Authorizing the Commission on Elections to Use an Automated Election System in the May
11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing
Funds Therefor and For Other Purposes.


popular, some political aspirants are appearing or guesting in movies, commercials
and radio and TV programs.

In the 2004 case of Chavez v. Commission on Elections (437 SCRA 415), the
Supreme Court ruled that if a person entered into contracts or agreements to endorse
certain products, appeared in billboards, and subsequently filed his certificate of
candidacy (COC) for senator, he may be held liable for “indirectly promoting his
candidacy,” which falls under the activities included in the definition of an “election
campaign” or “partisan political activity”.

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 or candidates to a public office. One of the activities included under this

definition is: “Directly or indirectly soliciting votes, pledges or support for or

against a candidate.”
In the Chavez case, the Supreme Court held:

It is true that when petitioner entered into the contracts or
agreements to endorse certain products, he acted as a private individual
and had all the right to lend his name and image to these products.
However, when he filed his certificate of candidacy for Senator, the
billboards featuring his name and image assumed partisan political
character because the same indirectly promoted his
candidacy. Therefore, the COMELEC was acting well within its scope
of powers when it required petitioner to discontinue the display of the
subject billboards. If the subject billboards were to be allowed,
candidates for public office whose name and image are used to advertise
commercial products would have more opportunity to make themselves
known to the electorate, to the disadvantage of other candidates who do
not have the same chance of lending their faces and names to endorse
popular commercial products as image models. Similarly, an individual
intending to run for public office within the next few months, could pay
private corporations to use him as their image model with the intention
of familiarizing the public with his name and image even before the start


of the campaign period. This, without a doubt, would be a
circumvention of the rule against premature campaigning:

In the 2009 case of Pefiera v. Commission on Elections (599 SCRA 609), the
Supreme Court stated that the laudable and exemplary intention behind the prohibition
against premature campaigning is to level the playing field for candidates of public
office, to equalize the situation between the popular or rich candidate, on one hand,
and lesser-known or poorer candidates, on the other, by preventing the former from
enjoying undue advantage in exposure and publicity on account of their resources and

popularity

The Supreme Court further stated:

We cannot stress strongly enough that premature campaigning is
a pernicious act that is continuously threatening to undermine the
conduct of fair and credible elections in our country, no matter how
great or small the acts constituting the same are. The choice as to who
among the candidates will the voting public bestow the privilege of
holding public office should not be swayed by the shrewd conduct,
verging on bad faith, of some individuals who are able to spend
resources to promote their candidacies in advance of the period slated
for campaign activities.

Verily, the consequences provided for in Section 68 of the
Omnibus Election Code for the commission of the prohibited acts of
premature campaigning are severe: the candidate who is declared guilty
of committing the offense shall be disqualified from continuing as a
candidate, or, if he/she has been elected, from holding office. Not to
mention that the said candidate also faces criminal prosecution for an
election offense under Section 262 of the same Code.

Thus, this bill seeks to enumerate and specify the acts constituting “indirectly
soliciting votes, pledges or support”, in order to educate and inform the political
aspirants of the acts that may be considered as election campaigning or partisan

political activities, With regard the appearance of a political aspirant as a guest in any


TV or radio program, the appearance should be only for purposes of legitimate news

coverage.
This bill also expanded the scope of the prohibition against premature

campaigning. R.A. No. 8436 or the Poll Automation Law, as amended by R.A. No.

9369, Section 15, paragraph 3, states:

For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition of 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 effect only upon that 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 factor resigned from his/her office
and must vacate the same at the start of the day of the filing of his/her
certification of candidacy. (Emphasis Supplied)

This provision is the reason for the split decision in the Pefiera case. The

Supreme Court ruled:

In view of the third paragraph of Section 15 of Republic Act No.
8436, as amended, the he Dissenting Opinion argues that Section 80 of
the Omnibus Election Code can not be applied to the present case since,
as the Court held in Lanot v. Commission on Elections,” the election
campaign or partisan political activity, which constitute the prohibited
premature campaigning, should be designed to promote the election or
defeat of a particular candidate or candidates. Under the present election
law, 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.

*507 SCRA 114 (2006).


According to the Dissenting Opinion, even if Pefiera’s acts before

the start of the campaign period constitute election campaigning or

partisan political activities, these are not punishable under Section 80 of

the Omnibus Election Code given that she was not yet a candidate at

that time. On the other hand, Pefiera’s acts if committed within the

campaign period, when she was already a candidate, are likewise not

covered by Section 80 as this provision punishes only acts outside the
campaign period.
The Dissenting Opinion ultimately concludes that because of

Section 15 of Republic Act No. 8436, as amended, the prohibited act of

premature campaigning in Section 80 of the Omnibus Election Code, is

practically impossible to commit at any time.

In order to avoid any confusion in the future, the bill includes “prospective
candidates” in the scope of the prohibition against premature campaigning.
Prospective candidates are those political aspirants, whether or not he/she explicitly
declared his/her intention to run in the immediately preceding elections, who
eventually file their COCs. The bill also re-defines the term “candidate”. Under the
bill, from the moment any person files his/her COC, he/she shall be considered as a
candidate, and the acts constituting premature campaigning shall apply to candidates
upon filing of their COCs. This is a clear repudiation of the Supreme Court decision
in Pefera.

Further, to make the acts of candidates or prospective candidates constituting
election campaigning or partisan political activities that are committed even prior to
start of the campaign period punishable, the bill prohibits candidates or prospective
candidates from engaging in any act of premature campaigning within one year before
the start of the campaign period. This will in effect, repeal Section 15 of R.A. No.

8436. The only condition required in order to be held liable is that the candidate

should have continued with his/her candidacy; or that the prospective candidate


should have subsequently filed his/her COC and actually continued with his/her

candidacy.

HERMINIO HARRY L. ROQUE JR.


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SEVENTEENTH CONGRESS OF THE REPUBLIC)
OF THE PHILIPPINES. )
First Regular Session )

HOUSE OF REPRESENTATIVES
H. B. No. G85.

Introduced by Representative Herminio Harry L. Roque Jr.

Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:

AN ACT
AMENDING SECTIONS 79, 80 AND 81 OF BATAS PAMBANSA BILANG 881
OTHERWISE KNOWN AS THE “OMNUBUS ELECTION CODE
OF THE PHILIPPINES”
SECTION 1. Short Title. - This Act shall be known as the “Anti-Premature

Campaigning Act”

SECTION 2. Batas Pambansa Blg. 881 aka the “Omnibus Election Code of the

Philippines”, Section 79 is hereby amended to read as follows:

Sec. 79. Defini

ns. — As used in this Code:

a. 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;

ANY PERSON SHALL BE CONSIDERED AS A
CANDIDATE FROM THE MOMENT HE/SHE FILED
HIS/HER CERTIFICATE OF CANDIDACY. ACTS
CONSTITUTING | PREMATURE — CAMPAIGNING

ENUMERATED IN THIS CODE SHALL APPLY TO.


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CANDIDATES UPON THE FILING OF THEIR
CERTIFICATE OF CANDIDACY.

ON THE OTHER HAND, THE TERM “PROSPECTIVE
CANDIDATE” REFERS TO ANY PERSON ASPIRING
FOR OR SEEKING AN ELECTIVE PUBLIC OFFICE,
WHETHER OR NOT HE/SHE HAS EXPLICITLY
DECLARED HIS/HER INTENTION TO RUN AS A
CANDIDATE IN THE IMMEDIATELY PRECEDING
ELECTIONS, WHO EVENTUALLY FILES A

CERTIFICATE OF CANDIDACY;

. The term “election campaign” or “partisan political activity”

refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office which shall
include:

1. Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a
candidate;

2. 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;

Making speeches, announcements or commentaries, or
holding interviews for or against the election of any
candidate OR PROSPECTIVE CANDIDATE for public

office, PROVIDED, THAT NEWS COVERAGE AND


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INTERVIEW SHALL NOT BE CONSIDERED
PARTISAN POLITICAL ACTIVITY.

Publishing or distributing campaign literature or materials
designed to support or oppose the election of any

candidate OR PROSPECTIVE CANDIDATE; or

. Directly or indirectly soliciting votes, pledges or support

for or against a candidate OR PROSPECTIVE
CANDIDATE.
THE TERM “INDIRECTLY SOLICITING
VOTES, PLEDGES OR SUPPORT” INCLUDES THE
FOLLOWING ACTS:
a. ENDORSING ANY PRODUCT OR
SERVICE, WHETHER FOR A FEE OR
NOT;

b. APPEARING IN ANY INFOMERCIAL;

c. APPEARING IN A DOCUMENTARY OR
MOVIE WHETHER FOR A FEE OR NOT;

d. APPEARING OR GUESTING IN ANY
TELEVISION OR RADIO PROGRAM,
EXCEPT FOR PURPOSES OF
LEGITIMATE NEWS COVERAGE;

e. ACCEPTING ANY EMPLOYMENT IN
ANY MEDIA OUTFIT AS A NEWS
ANCHOR, WRITER, OR REGULAR

TALENT; OR


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f. BUYING ANY PRINT, RADIO,
TELEVISION OR INTERNET SPACE TO
ADVERTISE HIM/HER-SELF OR ANY
PRODUCT OR SERVICE.

The foregoing enumerated acts if performed for the purpose of
enhancing the chances of aspirants for nomination for candidacy to a public
office by a political party, aggroupment, or coalition of parties shall not be
considered as election campaign or partisan election activity.

Public expressions or opinions or discussions of probable issues in a
forthcoming election or on attributes of or criticisms against probable
candidates proposed to be nominated in a forthcoming political party
convention shall not be construed as part of any election campaign or

partisan political activity contemplated under this Article.

SECTION 3. Batas Pambansa Blg. 881 aka the “Omnibus Election Code of the
Philippines”, Section 80 is hereby amended to read as follows:
Sec. 80. Election campaign or partisan political activity outside
campaign period. ~ It shall be unlawful for any person, whether a candidate
OR PROSPECTIVE 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.
ANY PERSON, WHETHER A CANDIDATE OR
PROSPECTIVE CANDIDATE MAY BE HELD LIABLE UNDER

THIS SECTION FOR THE ACTS COMMITTED WITHIN ONE


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YEAR BEFORE THE START OF THE CAMPAIGN PERIOD;
PROVIDED, HOWEVER, THE CANDIDATE SHOULD HAVE
ACTUALLY CONTINUED WITH HIS/HER CANDIDACY;
PROVIDED, FURTHER, THE PROSPECTIVE CANDIDATE WHO
ENGAGED IN AN ELECTION CAMPAIGN OR PARTISAN
POLITICAL ACTIVITY TO PROMOTE HIS/HER INTENDED
CANDIDACY SHOULD HAVE SUBSEQUENTLY FILED HIS/HER
CERTIFICATE OF CANDIDACY AND ACTUALLY CONTINUED

WITH HIS/HER CANDIDACY.

SECTION 4. Batas Pambansa Blg. 881 aka the “Omnibus Election Code of the
Philippines”, Section 81 is hereby amended to read as follows:

Sec. 81. Intervention of foreigners. — It shall be unlawful for any
foreigner, whether judicial or natural person, to aid any candidate OR
PROSPECTIVE CANDIDATE or political party, directly or indirectly, or
take part in or influence in any manner any election, or to contribute or
make any expenditure in connection with any election campaign or partisan

political activity.

SECTION 5. Separability Clause. ~ If any provision of this Act shall be declared
unconstitutional, any other provision not affected thereby shall remain in full force and

effect.

SECTION 6. Repealing Clause. — All laws, decrees, orders, rules and regulations,

or parts thereof inconsistent with this Act are hereby repealed or amended accordingly.


1 SECTION 7. Effectivity. — This Act shall take effect fifteen (15) days after its

2 publication in at least two (2) newspapers of general circulation.

Approved.