The prohibitions are not absolute…. The consistent trend of the Supreme Court is to uphold free speech and expression over any form of election regulation.
Facebook users have recently been sharing a post from 2016 with a very catchy title: “Government employees reminded: you can’t campaign for candidates, even in FB.”
It’s accompanied by a stern warning at the end “[t]hat violations committed by government employees may be seen as an administrative offense under the CSC and as election offense under Comelec.”
And to scare government officials out of their wits, it was followed by this: “[t]he penalties range from suspension to dismissal, imprisonment, disqualification from public office and the deprivation of right to vote.”
The article obviously referred to the March 29, 2016, Joint Resolution 1600298 of the Civil Service Commission (CSC) and the Commission on Elections (Comelec), the “Advisory on Electioneering and Partisan Political Activity” for all officers and employees of the government.
The article, however, gave the wrong impression that there is a blanket prohibition over all government employees and any and all kind of actions. But is this accurate? Are all government employees covered?
The general policy on non-intervention of public officers and employees is expressly laid down in the 1987 Constitution. Section 2 (4) Article IX-B provides that “no officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.”
Implementing this, Section 55, Chapter 7 (Prohibitions) of Subtitle A of the Administrative Code of 1987, provides: “No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body.”
Apart from being an administrative offense, intervention by public officers and employees also constitutes a punishable election offense under the Omnibus Election Code. Section 261 provides:
Section 261. Prohibited Acts. – The following shall be guilty of an election offense:
(i) Intervention of public officers and employees. – Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member or the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.
Under Sec. 264, any person found guilty of violating the above provision shall be punished with imprisonment of at least one year but not more than 6 years and shall not be subject to probation.
To determine the scope and the extent of the limitations of the above prohibition on government officials regarding campaigning, 3 things need to be asked:
When does the prohibition take effect?
Who are covered?
What are covered?
When does the prohibition take effect?
The nexus of the offense is the act of intervening or engaging by government employees in any “election campaign” or “partisan political activity.”Under Section 79 (b) of the Omnibus Election Code, these are defined as “act[s] designed to promote the election or defeat of a particular candidate or candidates to a public office.”
Before, it was straightforward and uncomplicated. After the filing of the certificate of candidacy (COC), those who filed are automatically “candidates” and all the regulations pertaining to “election campaign” or “partisan political activity” are in place.
However, since the case of Penera vs. Comelec (G.R. No. 181613, November 25, 2009), everything has changed.
In Penera, the Supreme Court held that a person who files his certificate of candidacy shall only be considered a “candidate”at the start of the campaign period. This ruling did not only decriminalize premature campaigning, but limited and confined the application of many election regulations and prohibitions to the campaign period.
Significantly, this affected how we monitor campaign expenditure before the campaign period because now, even if aspirants have filed their COCs, there is no candidate to monitor and technically no campaigning can happen.
This also affected the rule on neutrality of government employees in the Administrative Code and Section 261 (i) of the Omnibus Election Code.
In the 2019 elections, for example, the campaign period for senatorial candidates and party-list groups will start on February 12, 2019. Meanwhile, the campaign period for governors down to municipal councilors and for district representatives will start on March 29, 2019. This means that there are no “candidates” until those dates, there are no “candidacies” to promote or defeat, and there is no neutrality for government employees to breach.
In other words, “electioneering,” “election campaign,” and “partisan political activity” are legal impossibilities until February 12, 2019, for national posotions and until March 29, 2019, for local ones.
The March 29, 2016, Joint Resolution No. 1600298 of the CSC and the Comelec rejects that Supreme Court’s interpreation. It says “Section 80 of the Omnibus Election Code [on premature campaigning]…has not yet been repealed.” It insists that government employees will be liable for electioneering as soon as after the filing of COCs.
This is absolutely erroneous. In the footnote, it appears the CSC and Comelec are citing as basis the September 11, 2009, Supreme Court ruling in Penera vs. Comelec (G.R. No. 181613). They missed the fact that there are two Penera decisions and what they cited was the first Penera ruling which was abandoned on November 25, 2009, when the Supreme Court reversed itself and decriminalized premature campaigning.
Who are covered?
Assuming that we are now in the campaign period and the rule on neutrality is up, are all government employees covered without distinction?
No. The provision of Section 261 (i) of the Omnibus Election Code expressly exempts “political offices.”
In Quinto vs. Comelec (G.R. No. 189698, February 22, 2010), “political offices” were interpreted to mean “elected public officials,” who, “by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period.”
The Joint Resolution No. 1600298 of the CSC and Comelec enumerates what qualify as “political offices” and are thus covered by the exemption:
The President and the Vice President Members of the Cabinet
Other elective public officials, except barangay officials
Personal and confidential staff of the abovementioned officials
Note that barangay officials, being non-partisan by nature, are not exempted and are therefore prohibited from engaging in “election campaign” or “partisan political activity”when the campaign period starts.
The rest of civil servants holding non-political or non-elective offices or those serving in all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters are covered by Section 261 (1).
What acts are covered?
Government officials who are covered by the prohibition are not allowed to engage in “election campaign” or “partisan political activity”when the campaign period starts. The law defines “election campaign” or “partisan political activity” as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Examples of such are:
Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate
Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate
Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office
Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate
Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The list is not exclusive and should be treated as mere examples. All acts that are “designed or intended to promote the election or defeat of a particular candidate or candidates to a public office” are covered.
But where do we draw the line between legitimate free expression and clear electioneering? Are government employees expected to be completely silent on matters of elections?
Section 55, Chapter 7 (Prohibitions) of Subtitle A of the Administrative Code of 1987, for example, qualifies the prohibition to engage in partisan political activity with this:
“Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports; provided, that public officers and employees holding political offices may take part in political and electoral activities, but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.”
Section 79 of the Omnibus Election Code also provided for this qualification:
“Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.”
In other words, the prohibitions are not absolute. They should rather be interpreted in consonance with the free speech guarantees in the Constitution. In fact, the consistent trend of the Supreme Court is to uphold free speech and expression over any form of election regulation.
Instructive of this policy, is the case of Diocese of Bacolod vs Comelec (G.R. No. 205728, January 21, 2015) where this relationship is thoroughly discussed.
In the Bacolod case, the Supreme Court even ruled that while “speech in the context of electoral campaigns made by candidates or the members of their political parties or their political parties may be regulated,” it is unconstitutional to “[regulate]…speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider…”
With this very clear policy direction as regards non-regulation of speeches and expressions by non-candidates, is the statutory limitation on the government employees still a good law?
Government employees, upon entering public service, do not strip themselves of their citizenships. They remain citizens, pay their taxes, and equally suffer like any other citizen when the elected government fails to deliver. In fact, as part of the government workforce, government employees should have more to say on who should lead the government they are working for. – Rappler.com
Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo, whose victory is being contested by former senator Ferdinand Marcos Jr. Marañon served in Comelec as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is a partner at Trojillo Ansaldo and Marañon (TAM) Law Offices.