Lanot vs Comelec 2006: No Violation of Political Ads
Mike Banos
August 26, 2009
Santiago has urged the Dept. of Justice, Ombudsman, Commission on Elections and Commission on Audit to conduct a criminal investigation and the subject officials to return the public funds used for the infomercials.
Called to account were Technical Education Skills Development Authority (TESDA) Chair Augusto Syjuco, Makati Mayor Jejomar Binay, Vice President Noli de Castro, Philippine Amusement and Gaming Corp. chair Efraim Genuino, Metropolitan Manila Development Authority Chair Bayani Fernando, Secretaries Francisco Duque, Jesli Lapus, Hermogenes Ebdane, Nasser Pangandaman and Ronaldo Puno.
Santiago cited Section 261 of the Election Code, which provides that any person who uses directly or indirectly public funds is guilty of an election offense and the Code of Conduct of Public Officials which bars them from accepting anything of monetary value in the course of official duties.
While admitting the Cabinet men cannot be accused of "premature campaigning" since not one has yet filed a candidacy for a public post, Gonzales, now chief presidential legal counsel, is asking the Comelec, COA and the Ombudsman to find out if the funds were used "by people who are planning to run," since this could constitute an "ethical violation" under the Ethical Standards Law."
Cabinet Secretary Silvestre Bello, who served as justice secretary to the late President Cory Aquino, likewise admits there is no legal basis to conclude the infomercials were used for political purposes since not one of the officials involved is a candidate, although he said the Cabinet men would be well advised to reformat the tone of their infomercials so these would not be taken as political propaganda.
A closer look of the issue vis a vis Lanot vs Comelec, the established jurisprudence on political ads, should settle it with finality.
The Supreme Court has ruled in the Lanot vs Comelec case of 2006 that three essential elements should be present for there to be any violation of Section 80 of the Omnibus Election Code. These are (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; and (3) the act is done outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate is defined as one who "has filed a certificate of candidacy" to an elective public office. Unless a person has filed his certificate of candidacy, he is not a "candidate." None of the Cabinet members accused by Santiago has filed a certificate of candidacy, hence none of them can be regarded as a candidate in violation of the election code.
The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed. Candidates are supposed to file their certificates of candidacy by end-November, hence the official campaign period for the 2010 polls will only start by then.
Thus, the airing of public service advertisements by Cabinet Officials do not violate election laws because until such time they file certificates of candidacy, there is no "particular candidate or candidates" to campaign for or against.
The bottom line is only those who have filed certificates of candidacies are considered as candidates. Only those promoting candidacies for public office are legally considered as candidates.
So if Bayani Fernando touts what he has accomplished for Metro Manila–no matter how outlandish–in advertisements, this is not considered premature campaigning and is not illegal.
Even granting that these officials intend to plan for public office, Santiago cannot cite Section 261 of the Election Code against any of them since not one of them used public funds for their infomercials. Logic would tell Santiago that if these officials were really bent on running for public office, they wouldn´t consider jeopardizing their chances of winning by using public funds or gifts. In other words, Miriam should forget the idea she holds a monopoly of what passes for genius or intellect at the very least.
Consider the scope of the probe she has called for against the Cabinet men: why isn´t she including her colleagues in the Senate who have publicly announced their intention to run next year since they also have their own blatantly self-serving infomercials?
In fact, her colleagues like Mar Roxas and Manny Villar are in an even better position to use public funds for their infomercials since their PDAF are traditionally beyond audit, unlike expenditures of executive branch officials whose expenses are rigorously audited and examined.
Yet, she chooses not to include them in her probe. Considering how she publicly announced her support for the presidential aspirations of Villar, maybe that´s not too hard to figure out after all.
In his August 13 column in the Philippine Star, UP professor-columnist Alex Magno cited how the advertising industry estimated Villar and Roxas have easily spent well over a billion pesos in paid media placements.
"Everything spent by the public agencies in those infomercials that might incidentally promote their respective heads pales in comparison to the awesome spending by these two obvious presidential aspirants," Magno said.
"By exempting her two colleagues in the Senate from this inquiry, Sen. Santiago becomes vulnerable to the charge of being selective. Or of being utterly blind to the gross disproportion in ad spending between her two colleagues on one hand and the entire executive branch on the other.
"Besides, the public agencies have at least the excuse of public information for what they do. Her two colleagues spending hundreds of millions on blatant self-promotion do not even have that thin cover."
This "selective amnesia is again graphically demonstrated with Santiago´s recent declaration washing her hands of the controversial "Le Cirque" dinner during President Arroyo´s last visit abroad because of the money spent by "people from a developing country."
When one considers how Santiago´s numerous foreign trips as a member of President Arroyo´s delegation during the Chief Executive´s official visits to other countries were all paid for with taxpayers´ money, the hypocrisy behind her outrage, or "selective amnesia" if you will, becomes all to obvious.
Santiago has been a regular fixture of almost every delegation that the President brings along during her official foreign trips. To cite a few, the President´s official visits to New Zealand and Australia; the World Economic Forum in Davos, Switzerland in January last year; in Thailand when the President attended the BIMP-EAGA Leaders´ Summit in Cha-am in February this year; just this May and June to Korea, Japan and Russia.
As chairperson of the Senate foreign relations committee, Santiago has successfully made it a second career as a member of the President´s official delegation during these foreign sojourns. Yet, we have yet to see an accounting, or audit if you will, of Santiago´s accomplishments in all these foreign trips paid for by the taxpayer´s money.
What was her role during these visits, besides being the Senate foreign relations committee chairperson? Did she speak officially with anyone during these visits? Was she able to bring in millions of dollars in investments, bilateral trade accords or pledges of new jobs for Filipinos back home? Was she instrumental in pardoning, or commuting the sentences of Filipinos languishing in foreign jails?
The day of reckoning is coming soon, Mrs. Senator. We hope you will be well prepared for it.
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