This legal anomaly — that there’s no such thing as premature campaigning — can only be corrected by lawmakers. The problem is, they benefit from it.
The filing of certificates of candidacy (COCs) for the 2025 elections is ongoing as you read this, having started on Tuesday, October 1, 2024, and will continue until the 8th. (Bookmark: LIVE UPDATES: Filing of certificates of candidacy for 2025 Philippine elections)
Before the passage of Republic Act No. 8436, this act of filing a COC made a person already a candidate under the old Omnibus Election Code (1985). It immediately brought the person within the regulatory powers and punitive reach of the Commission on Elections (Comelec). His or her actions — like campaigning ahead of the official campaign period — could already be regulated and even punished with imprisonment and disqualification!
However, when RA 8436 was passed in 1997, an interesting provision was curiously included in the law. It authorizes the use of an automated election system. The insertion states that “unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period.”
Later, in amending RA 8436 in 2007 through the passage of RA 9369, Congress added the word “only” to put more emphasis. Now, it reads “unlawful acts or omissions applicable to a candidate shall effect only (emphasis mine) upon that start of the aforesaid campaign period.”
Front-loading to skirt spending limits
In 2009, in the landmark case of Penera vs. Comelec (G.R. No. 181613, November 25, 2009), the Supreme Court recognized the effects of these insertions. Now, even when one has filed his COC, he or she is still not yet a candidate. A new creature was therefore born, one who is a candidate in the eyes of the public, but not in the eyes of law; one that the public wants and demands to be regulated for being too “epal,” but whom the Comelec cannot, given the legal restrictions discussed.
For the longest time, we in the election practice grappled with what to call this strange new creature, but in recent years the word “aspirant” has become more and more accepted. So after the filing of COC, one can be called an “aspirant,” and this aspirant becomes a “candidate” when the campaign period kicks in. The campaign period starts on February 11, 2025, for senator and party-list groups participating in the system of proportional representation. Meanwhile, it starts on March 28, 2025, for candidates for member of the House of Representatives, parliamentary, provincial, city, and municipal officials.
To repeat: an aspirant is immune from regulation and prosecution for any violation of the election law that covers candidates. Aspirants can spend as much as they like and remain immune from campaign finance regulation. Aspirants have no obligation to disclose or declare expenses incurred before the campaign period, even when later they metamorphose into a candidate. A legal loophole has birthed the practice of front-loading of campaign expenses — the aspirants spend as much as they can to promote themselves before the campaign period, so that, as future candidates, they can go around campaign spending limits and spend beyond the maximum allowed. A candidate who belongs to a politicial party is allowed to spend only ₱3 for every registered voter, while an independent is allowed ₱5 per voter.
Thus, I feel the frustration of Chairman George Garcia and the rest of the Comelec — of which I was once a part for five years — when they are publicly pressured to address “epals” engaged in premature campaigning, yet they can do nothing given this legal loophole, and with premature campaigning now falling into the category of “free speech.”
Name and shame the ‘epals’
To add further confusion to the mix, during the Barangay and Sangguniang Kabataan Elections (BSKE) in October 2023, Comelec correctly decided not to apply the Penera vs. Comelec doctrine. Meaning, there were no “aspirants” in the BSKE — one did not need to wait for the campaign period to become a candidate. Upon the filing of a COC in a barangay election, one is instantaneously a candidate by operation of law, and candidates are not allowed to do premature campaigning.
So why the difference in treatment? Simply, BSKE was an all-manual election — no automated election machines were used during the voting and counting. Thus, the provisions of our automated election laws, RA 8436 and RA 9369, did not apply. Should the Comelec automate our BSKE someday, then that will be the time when this doctrine of “nothing considered as premature campaigning” will be applicable.
This current scenario is both weird and confusing even to an election lawyer like me. To be honest, I am not really against premature campaigning. I believe that this is the only way that lesser-known politicians can increase their chances of victory when running against movie or TV stars, public figures or traditional politicians from or backed by political dynasties. However, I firmly believe that premature campaigning at the very least should be subject to campaign finance monitoring and regulation. Unfortunately, this cannot be done presently given our current laws.
Unfortunately, this legal anomaly can only be corrected by amending and revising our laws. Only Congress can do this — not the Comelec, not even the courts! Even more unfortunate is the fact that the very people tasked to correct this also benefit from the very legal anomaly they caused. While waiting for this moment that perhaps will never come, the public in the meantime can go on with their name-and-shame campaign, which, while it may not be as effective, will be a deterrent at the very least!
For all the candidates good luck! It will yet be another wild ride for all of us! – Rappler.com
Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. Marañon served in Comelec as chief of staff of the late chairman Sixto Brillantes Jr. He graduated from the SOAS, University of London, where he studied Human Rights, Conflict, and Justice as a Chevening scholar. He is a partner at Trojillo Ansaldo and Marañon (TAM) Law Offices.
