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Some are more equal than others

(Article published in the Dec 9, 2009 issue of Manila Standard Today) 

All men are created equal, says the American Declaration of Independence.  But, based on the Supreme Court resolution in Penera (G.R. No. 181613) promulgated 25 November 2009 and its decision in Quinto (G.R. No. 189698) issued six days later,  at least in the field of Philippine election law,  some are more equal than others. 

Rosalinda A. Penera was a candidate for mayor in Sta. Monica, Surigao del Norte in the 2007 synchronized national and local elections.  She admitted that one day before the commencement of the campaign period on 30 March 2007, she and her partymates, accompanied by supporters went to the COMELEC office on board a convoy of two trucks and some motorcycles, laden with balloons, posters and banners to file their certificates of candidacy and thereafter went around the different barangays in Sta. Monica waived their hands to the public and threw candies to the public.  The obvious purpose was to introduce to the voting public the candidates and the positions they sought to be elected to, to make them more visible so as to facilitate the recognition and recollection of their names in the minds of the voters come election time. 

In its decision dated 11 September 2009, the Supreme Court considered Penera to have indulged in premature campaigning and thus to have violated Section 80 of the Omnibus Election Code.  Citing the case of Chavez v. COMELEC, the Court observed that “the laudable and exemplary intent 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 candidates, 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 Court further said, “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 county, 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 for slated campaign activities.”

Rich and poor thus ought to be at the same starting line in the electoral race.

Less than three months thereafter, the Supreme Court changed its mind.  On 25 November 2009, it held that Penera committed no violation at all.  Invoking the esoterics of statutory construction (a full analysis of which I leave to the more learned and scholarly), the Supreme Court set aside its decision of 11 September 2009 and permitted Rosalinda Penera to continue as mayor of Sta. Monica, Surigao del Norte.

What happened to the Supreme Court’s essay into the equality reasons for the law and the justification of the rule against premature campaigning? Meekly the justices said the text of the law punishes only “candidates” and no one is a “candidate” who has not filed a certificate of candidacy.  If you do not like the law, change the law.  Meantime, the court must apply it.  “The forum for examining the wisdom of the law and enacting remedial measures is not this Court but the Legislature.  This Court has no recourse but to apply a law that is clear, concise and express…”   Down crushed the lifting ideal of equality.

But even as the country was singing the funeral dirge for the idea that the courts are the last bulwark of what is fair and reasonable, the Supreme Court on 01 December 2009 opened its decision in Quinto et al v. COMELEC (G.R. No. 189698) with these words:

“In our predisposition to discover the original intent of a statute, courts become the unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers.  Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day.”

Hark, what light from yonder window shines?  Has the Supreme Court come alive again to once more strike for equality?  Maybe.  But, apparently, equality of a different kind.

Quinto was filed by two petitioners who both held appointive positions in the government and who intend to run in the coming elections.  They petitioned the Supreme Court to declare void the rule found in Section 11 of Republic Act No. 8436 as amended by Section 13 of Republic Act No. 9369 which considers any person holding a public appointive office to be ipso facto resigned from his office upon the filing of the certificate of his candidacy and orders him to vacate his office at the start of the day of such filing. 

That rule traces its roots to the period of the American occupation; it is an old provision which was merely copied from earlier existing legislation.  The rule of automatic resignation applies only to appointive officials, not to elective officials.

The reason for the different rules was articulated in the Supreme Court decision in the case of Fariñas v. The Executive Secretary (463 Phil 179): Substantial distinctions clearly exist between elective officials and appointive officials.  The former occupy their office by virtue of the mandate of the electorate.  They are elected to office for a definite term and may be removed therefrom only upon stringent conditions.  On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority… Another substantial distinction…is that…appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote….elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities…”

“The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one’s candidacy, or even to wield a dangerous or coercive influence on the electorate.  The measure is further aimed at promoting the efficiency, integrity and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public.  The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their work.”

Logically, therefore, persons situated differently should be treated differently.  But, the Supreme Court had a surprise in the offing.

Viewing the substantial distinction between an appointive and an elective official in the light of the purpose of the law in making different rules for different classes, the Supreme Court found that the distinctions were not “germane” to the purpose of the law.  “Indeed,” said the court, “whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain.”  Moreover, the law was found to suffer from the infirmity of being “overboard” or “a general and sweeping provision.”

In effect, appointive officials despite being very different from elective officials:  were put in equal footing, with the latter.  If elective officials can abuse their positions, appointive officials must be given equal opportunity to do so.

Thus, thanks to Penera and Quinto, in our unfortunate country, the rich can now equally compete with the poor in promoting themselves prior to the campaign period; those in power, whether elective or appointing, have equal opportunity to take advantage of their positions to seek more power.

           That the resources of the poor do not measure up to the resources of the rich, and that commitment to duty of an elective official to be loyal to his constituents is different from the duty of the appointee to serve the public matter not; equality regardless of how perverted is the name of the game.