Penera vs COMELEC and AndanarGR 181613 Sepetember 11, 2009

FACTS:

Penera and Andanar were both mayoral candidates in Sta. Monica in the 2007 elections. On

March 29, 2007, a day before the start of the designated campaign period (March 30, 2007), Penera

submitted her COC to the COMELEC office. After which she allegedly engaged in premature

campaigning in the form of a motorcade wherein she and a number of her party mates went through

a number of towns and announced their candidacy and requested for votes.

On April 2, 2007 Andanar filed a petition for disqualification against Penera's party (herself,

plus their bet for Vice-Mayor and the Sangguniang Bayan) for unlawfully engaging in election

campaigning and partisan political activity prior to the commencement of the campaign period

[SPA No. 07-224]. The petition was submitted together with affidavits of witnesses. Penera then

filed an answer wherein she (1) denied the allegation of premature campaigning, (2) admitted that

the motorcade took place but claimed that it was merely a simple motorcade with no speeches, and

(3) cited the case of Barroso v Ampig wherein the court ruled that a motorcade held by candidates

during their filing of COC's was not a form of political campaigning. Both Penera and Andanar

appeared before ORED-Region XIII where they agreed to submit their respective position papers

along with support. These were then subsequently transmitted to the COMELEC main office in

Manila, where the case was raffled to the COMELEC second division.

While SPA No. 07-224 was pending, on May 14, 2007 Penera won the elections and

assumed office on June 2, 2007. However on July 24, 2007, the COMELEC second division issued

a resolution which disqualified Penera for engaging in premature campaigning in violation of

Sections 80 and 68 of the Omnibus Election Code. The COMELEC second division found that

Penera did engage in premature campaigning in the form of a motorcade as elucidated by the

submitted affidavits with pictures as was also confirmed by Penera (that the motorcade did in fact

take place). Also that Penera's reference to the Ampig case did not hold true to her case. Since the

photos submitted by Andanar only identified Penera and not her party mates, there was no

justification for the disqualification of the others.

In a dissenting opinion a third member of the COMELEC second division, Commissioner

Rene V. Sarmiento (Sarmiento), said that Andanar failed to establish probable cause that Penera

engaged in premature campaigning. He pointed out that the photographs submitted were

insufficient. Fuhermore, Sarmiento said that bathe preload affidavits seemed to have been from one

person only. The affidavits' sentence construction and form were not only similar but were also

sworn to the same arresting officer.

Penera filed a Motion for Reconsideration before the COMELEC en banc regarding the July 24,

2007 resolution citing that she made no admission of premature campaigning and that she

contended that the pictures and affidavits should not have been given credence since that (1) the

pictures submitted were merely photocopies of the original thereby lacking authentication, and that

(2) the affidavits were taken ex parte making them incomplete and inaccurate. Penera also filed a

supplemental Motion for Reconsideration stating that supporters spontaneously accompanied her to

filing her COC and that the motorcade was part of the dispersal of the said supporters going back to

their respective towns.

On January 30, 2008, the COMELEC en banc denied Penera's Motion for Reconsideration

due to the utter lack of merit.

Penera filed an instant petition before the Supreme Court that COMELEC resolutions 24

July 2007 & 30 January 2008 be declared null and void for having been issued with grave abuse of

discretion amounting to lack r excess of jurisdiction. The Supreme Court then issued a temporary

restraining order enjoining the COMELEC from implementing the assailed resolutions, on

condition that Penera post a bond of P5000.00 and directed COMELEC and Andanar to comment

on the instant petition. In a resolution issued on June 17, 2008, the SC issued a resolution that

ordered Penera to reply to COMELEC and Andanar's comments. Penera submitted no reply.

On October 14, 2008, the Supreme Court dismissed Penera's petition. In response, Penera

filed an ex parte motion to admit reply which was treated as a motion for reconsideration. And on

November 11, 2008, the Supreme Court issued a resolution reinstating Penera's petition.

ISSUE:

1. Whether or not (WON) Penera has engaged in an election campaign or partisan political

activity outside the campaign period.

2. WON the contents of the complaint are deemed admitted for failure of Penera to specifically

deny the same.

3. WON Andanar has presented competent and substantial evidence to justify a conclusion that

Penera violated section 80 and 68 of the Omnibus Election Code.

4. WON the COMELEC committed grave abuse of discretion amounting to lack of or in

excess of jurisdiction in finding that the act of Penera in conducting a motorcade before the

filing of her certificate of candidacy constitutes premature campaigning.

5. WON the COMELEC committed grave abuse of discretion amounting to lack of or in

excess of jurisdiction when it resolves to disqualify Penera despite the failure of Andanar to

present competent, admissible and substantial evidence to prove the violation of Section 68 and

80 of the Omnibus Election Code.

RESOLUTION:

The Supreme Court finds no merit in the Instant Petition. The instant petition is dismissed.

The resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division en

banc, respectively, in SPA No. 07-224 are hereby affirmed.

In view of Penera’s disqualification, it is declared that the proclaimed Vice-Mayor is the

rightful successor. The Temporary Restraining Order issued on 4 March 2008 is hereby ordered

lifted

Questions of Fact:

Penera is only raising questions of fact in her petition; it is not the court's job to review

them. The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave

abuse of discretion, and it does not include a review of the tribunal’s evaluation of the evidence.

Therefore, the factual findings of the COMELEC are conclusive in the court. Furthermore, the court

finds no grave abuse of discretion amounting to the lack or excess of jurisdiction on the part of the

COMELEC second division in disqualifying Penera and on the part of the COMELEC en banc in

denying Penera's Motion for Reconsideration. The resolutions are supported by substantial evidence

that were presented by Andanar and confirmed by Penera in their respective Position Papers that

Penera and her party mates participated in a motorcade. A motorcade is a form of election campaign

or partisan political activity with no other purpose than to promote the election of a particular

candidate. Penera never denied taking part in the motorcade and only said the it was not undertaken

for campaign purposes. The court is not convinced, and thereby rules that Penera mus be

disqualified from holding the office of mayor.

Questions of Law:

The dissenting opinion, however, says that RA No. 9396 provides a new definition of

"candidate", paving for premature campaigning to no longer be possible of being committed:

"... Shall only be considered as a candidate at the start if the campaign period for which he filed his

COC: provided, that, unlawful acts or omissions applicable to the candidate shall effect only upon

the start of the aforesaid campaign period..."

The dissenting opinion says that section 80 of the Omnibus Election Code cannot be applied to the

present case and is practically impossible to commit since according to it, the candidate only

becomes a candidate when the campaign period begins. And that in order to constitute the act of

premature campaigning it must promote a candidate, the dissenting opinion further stresses how

premature campaigning can be committed when there is no official candidate.

With this, the court disagrees. Section 80 of the Omnibus Election Code remains relevant

despite the amendment. RA 9369 does not contain an express repeal for section 80 of the Omnibus

Election Code. Thereby, an express repeal cannot be presumed. RA 9369 expressly mentions an

amendment and not a repeal. Section 80 of the Omnibus Election Code is not part of those amended

by RA 9369. There is no absolute and irreconcilable incompatibility between section 15 of RA

8436, as amended & section 80 of the Omnibus Election Code. It is possible to harmonize and

reconcile the two provisions and thus, give effect to both.