Melo welcomes e-Hope 2010

JUSTICE Jose A.R. Melo, chairman of the Commission on Elections, welcomed my proposal to forge a national consensus for an electronic, honest, orderly and peaceful election in 2010 (e-Hope 2010). In a telephone conversation, he thanked me, concurring that dialogue is absolutely needed to resolve fears, doubts and difficulties relating to the automation system.

Creative solutions. He gamely conceded that being the first attempt at nationwide automation, the system could have some gaps and weaknesses. But as I wrote last week, the challenge is not to belabor the difficulties but to identify the problems, to propose creative solutions for them and thereby to increase the chances of success.

Melo agreed that interaction with the citizenry is an effective way to instill public trust in both the Comelec and the Smartmatic-TIM system. Truly, openness, transparency and accountability should be the norms in pursuing the electronic election system. And if the problems prove to be insurmountable, the options should include a return to manual count.

To start the interaction, Melo asked Commissioner Rene V. Sarmiento to call me. Acting on my suggestion for him to answer questions and clarify doubts, Sarmiento said readers may send their queries or comments to him at the Comelec head office in Intramuros, Manila or better yet, e-mail them to rvsarmiento@pacific.net.ph, with a copy to me. The questions and the answers will be posted on an e-Hope 2010 website that will be operational shortly. I will also publish some of them in this space.

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Premature campaigning. Let me now tackle, as promised, some ramifications of the Supreme Court decision in Penera vs Comelec (Sept. 11, 2009), penned by Justice Minita V. Chico-Nazario, decreeing that once their certificate of candidacy (COC) is filed, candidates may no longer engage in campaigning or other partisan activities until the official start of the campaign period.

If they do, they would be disqualified from continuing as candidates, or if already elected, from holding the office to which they have been so elected. Additionally, they may also face criminal prosecution for the same acts. This means that from Nov. 30, 2009 (the last day for filing COCs) until Feb. 9, 2010 (the official start of the campaign period), candidates may no longer undertake any activity to promote their election.

The purpose of this ban, according to the Court, “is to level the playing field between the popular or rich candidates, on one hand, and the lesser-known or poorer candidates, on the other, by allowing them to campaign only within the same limited period… the choice (by the voter)… 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.”

Samples of banned activities. The difficult problem is how to determine what constitutes premature campaigning and other partisan political activities. The Election Code simply refers to them as all acts “designed to promote the election or defeat of a particular candidate.”

Such acts include (1) “Forming organizations… 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, (also) for the purpose of soliciting votes… (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.”

Can a journalist who is not running for public office be held liable for criticizing a candidate during the prohibited period? Yes, premature campaigning for or against a candidate can be committed by “any person whether or not a voter or a candidate.” In the same manner, radio-TV commentators can commit the offense.

From November 30 to February 9, all campaign activities like billboards, commentaries, infomercials or interviews for or against any candidate must cease. Even product endorsements of bets are banned because – according to Chavez vs Comelec (Aug. 31, 2004) – such commercials indirectly promote candidacies. For the same reason, the giving of Christmas gifts (like calendars) by candidates, their participation in basketball games, medical missions, motorcades, etc. and the showing of their movies and TV serials would also be verboten.

This landmark decision on premature campaigning was passed by a slim 8-7 vote. Let lawyers debate the issues posed by the dissenters led by Justice Antonio T. Carpio. Suffice it to say for laypersons that the judgment is not yet final and is subject to a motion for reconsideration. The majority will have two votes less due to the retirement on October 5 of Justice Consuelo Ynares-Santiago and on December 5 by the ponente herself, Justice Nazario. On the other hand, Justice Leonardo A. Quisumbing who voted with the minority is retiring on Nov. 6.

Indeed, this decision could be reversed or modified on reconsideration, if the replacements of these retiring justices vote with the minority of seven (or six, if we subtract retiring Justice Quisumbing). Or if the replacements decline to vote. Or, if the Court resolves the motion without waiting for all the replacements. Abangan!

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