It is the height of the election season in the province of Batik.  The candidates are rushing to and fro campaigning.  Their ads can be seen in posters, streamers, even billboards.  Of course, political spending is rampant.  It is against this backdrop that we begin with the story of Mayor Bitong Bigote’s (Mayor Bigote) reckless spending spree.  Mayor Bigote is the current mayor of the municipality of Budol, Batik Province, Philippines.  He is famous for his plump figure and bristly mustache.  He usually carries on with his daliy activities without any care in the world and he exhibits this with his signature, sinister smirky smile.

His activities include receiving certain donations from so called good friends.  Because of this, he enters into several contracts with a TV network, one of which, is with Batik Network for television commercials amounting to approximately P16, 611, 500++.  In his area, the total number of registered voters is around 1,525, 000++ and under the Fair Election Act, which law, governs the campaign activities of candidates, the allowable expense for every registered voter is only P3.00, that is, for candidates belonging to political parties and P5.00, for each registered voter, in case of independent candidates.  Given these figures, Mayor Bigote should only be allowed to spend around P4,576,500++.  Because of this, a DQ (disqualification) case for overspending under Section 68 of the Omnibus Election Code (OEC) is filed by Mr. Pepong Malutong (Mr. Malutong), Mayor Bigote’s neighbor.  Mr. Malutong, a tall, lanky, unkempt fellow, wrinkly but devoid of any facial expression numbed by years of rejection and general disdain, and a candidate for the same position, would never let a crack, in the candidacy of Mayor Bigote, slip through – not in this life, not ever, while the Mr. Malutong is around.

The Election Office, the constitutional body charged with the administration of election laws in the country, fails to resolve the case before elections, and so, Mayor Bigote is proclaimed.  But later, the Election Office dques (disqualifies) him for violation of Section 68 of the OEC.

Mayor Bigote claims that since there is no previous conviction by final judgment of a competent court that he is guilty of having committed acts under Section 68 of the OEC, he cannot be dqued (disqualified), besides, the TV ads expenses were merely donated to him.  The TV ads utilized by him is guaranteed by the constitution as a form of freedom of expression.  Moreover, because of his proclamation, the DQ case against him is already moot and academic, his victory is an exemplification that he is more than suitable to hold public office and the petition filed by Mr. Malutong is a form of harassment, to unsettle his assumption into his well-deserved office.

Is Mayor Bitong correct?

Answer: No.  The Election Office resolved the electoral aspect of the DQ case.  The electoral aspect determines whether the candidate is qualified or not to run for office for acts allegedly committed under Section 68 of the OEC.  This proceeds independently of the criminal aspect of a DQ case.  Thus, there is no need for a preliminary investigation, much more a conviction, before the Election Office can proceed with the determination of the issues of the case.  The Election Office is correct in implementing its applicable office resolution.  The facts are slightly similar with the case of Ejercito vs. Comelec, November 25, 2014: “In the event that a candidate with an existing and pending Petition to disqualify is proclaimed winner, the Commission shall continue to resolve said Petition.”  Even in RA 6646 (The Electoral Reforms Law), section 6, it is stated:  “If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action XXX”  “Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon.” (Ejercito vs. Comelec, November 25, 2014)

With respect to the donated campaign ads, it is evident that Mayor Bigote consented to these donations because they must first be accepted in writing by the candidate and such acceptance must be attached to the advertising contract and submitted to the Election Office, before it can be the subject of a broadcast as required under R.A. 9006 (The Fair Election Act). It does not limit the free exercise of a voter’s right to free speech because the law does not disallow the message that is being promoted in the advertisement advancing the qualifications of Mayor Bigote.  The law’s purpose is to ensure that there is equal opportunity among all the candidates whether they are rich or poor.  Lastly, the Election Office is correct in saying that winning in the elections is not one of the modes, in the absence of a proper trial and hearing, by which a candidate’s commission of an election offense can be condoned.

In the end, Mayor Bigote was disqualified and was required to vacate his office, after almost a year, from the time that he was proclaimed.

***The characters mentioned herein are fictional.  Comments in this article are made by me in my personal capacity as a lawyer and not as an employee of the Comelec.

~Atty. Elenita Julia Tabangin-Capuyan~