Category: Election law & election campaigns

Election law & election campaigns, The News Media

Election Gag Provisions on the News Media

 

 The Comelec blog (http://www.comelec.wordpress.com) said the Comelec has “corrected” the gag provision on the publication or airing of surveys, as follows:       type.jpg

        Quote”Amendment to Com Res. No. 7767 approved by Comelec 

         Quote “Posted by comelec-eid on January 30th, 2007                 Quote “Commission on Elections (COMELEC) Commissioner Florentino A. Tuason today said that the provision in Comelec Resolution No. 7767, the implementing rules and regulations of the Fair Elections Act (RA 9006), that limits the publication of surveys affecting national and local candidates has been corrected.              

 

            Quote “COMELEC Spokesperson James Jimenez reiterated that the insertion of the provision in the resolution was the result of inadvertence and not at all intended to curtail the people’s right to information and limit the freedom of the press.                               

 

           Quote “He said copies of the amended resolution will be available once all Commissioners have affixed their signatures on the document.” unquote.                                  

 

         So, that went well. I haven’t read the exact amended resolution; the blog entry just said the provision had been corrected, so we don’t know if it had been entirely removed or the period just shortened.               

 

          Some of the following provisions also create certain prohibitions on the news media, or  what I call certain gag-provisions-on-speech-outside-the-election-campaign-period, and gag-provisions-on-speech-during-election-campaign-period (by “speech” i mean, as it used in the free-speech clause, or forms of expresion). You might want to take a look at them (I’ll reserve the line-by-line review for later); some need to be clarified or maybe “narrowed down” or illustrated,  so members of the news media  would have an idea of how these gag rules would be enforced; like the gag on “speeches, commentaries, interviews, for or against any candidate”  outside of  the election campaign period (Section 1 (1) (c)  in relation to Sec. 4 and Sec. 42);  or “spots or guestings (sic) to promote or oppose, directly or indirectly, the election of any candidate” (Section 1 (3) in relation to Sec. 42) ; or “unduly or repeatedly referring to or unnecessarily mentioning his (a candidate’s) name”  during the election  campaign period(Sec. 11 (5));  some are harmless like the provision on exit polls; or requiring columnists and media commentators who are running for office to take a leave-of-absence from their day job in the media;  some are “funny”  like Sec. 16 which had been lifted word-for-word  from the PPI Code of Ethics;  while Sec. 20 put into effect the right-to-reply bill which had not gotten past Congress because of the strong resistance from news editors and directors.                

 

          Anyway, here they are for your reading “pleiyshure”               

 

          SECTION 1. Definitions.– As used in this resolution:   

 

      1. The term “election campaign” or “partisan political activity” refers to any act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include any of the following:                      xxx 

 

         (1) c. Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; xxx      

 

          3. The term “political advertisement” refers to any matter broadcasted, published, printed, or exhibited which is intended to draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of a particular candidate or candidates to a public office. In the broadcast media, political advertisements may take the form of spots, guestings in TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers.         xxx      

 

            SEC. 4. Prohibited Campaign. – It is unlawful for any person, or for any political party, or association of persons to engage in an election campaign or partisan political activity outside of the campaign periods.           

 

        SEC. 5. Acts Not Considered Election Campaign or Partisan Political Activity. – The following acts shall not be considered as part of prohibited campaign even if done outside of the campaign period:      

 

       1. Any of the acts enumerated in SEC. 1 (1) hereof if performed for the purpose of enhancing the chances of aspirants for nomination as official candidates of any political party, organization or coalition; and         

 

         2. Public expression of opinions or discussions of issues in the forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated as official candidates in a forthcoming convention of a political party, organization, and/or coalition thereof.  xxx         

 

        SEC. 11. Prohibited Forms of Election Propaganda. – During the campaign period, it is unlawful:  xxx      

 

         3. To show, display or exhibit publicly in a theatre, television station, or any public forum any movie, cinematography or documentary portraying the life or biography of a candidate, or portrayed by an actor or media personality who is himself a candidate;      

 

          4. For any newspaper or publication, radio, television or cable television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or election propaganda purposes to any candidate, political party, or party-list group, organization, or coalition thereof in excess of the size, duration or frequency authorized by law or these rules;       

 

         5. For any radio, television, cable television station, announcer or broadcaster to allow the scheduling of any program, or permit any sponsor to manifestly favor or oppose any candidate, political party, party-list group, organization, and/or coalition thereof by unduly or repeatedly referring to, or unnecessarily mentioning his name, or including therein said candidate, political party, party-list group, organization, and/or coalition thereof; and  xxx        

 

       SEC. 16. Fair and Accurate Reporting. – All members of the media, television, radio, or print shall scrupulously report and interpret the news, taking care not to suppress essential facts or distort the truth by omission or improper emphasis. They shall recognize the duty to air the other side and the duty to correct substantive errors promptly without prejudice to the right of said broadcast entities to air accounts of significant news or newsworthy events and views on matters of public interest.   xxx    

 

          SEC. 19. COMELEC Space and Time for COMELEC Information Dissemination. – The Commission shall furthermore procure print space and air time as follows: xxx      

 

         b. Airtime         xxx 

 

          Interviews with candidates on their platforms or programs of government may be considered as election-related concern which the Commission shall allow as it deems fit to raise the level of campaign to public issues and vision of government, provided that the moderator or interviewer shall be a COMELEC official or one designated by the Commission specially for the purpose and provided further that all candidates shall be given equal access and opportunity.          

 

         SEC. 20. Right to Reply. – All registered political parties, party-list groups, organizations, and/or coalitions thereof, and bona fide candidates shall have the right to reply to charges published or aired against them. The reply shall be given publicity by the newspaper, television, and/or radio station which first printed or aired the charges with the same prominence or in the same page or  in the same time slot as the first statement.  xxx         

 

         SEC. 33. Exit Polls. – Exit polls may only be taken subject to the following requirements:        

 

         1. Pollsters shall not conduct their surveys within fifty (50) meters from the polling place, whether said survey is taken in a home, dwelling place and other places;         

 

           2. Pollsters shall wear distinctive clothing and prominently wear their identification cards issued by the organization they represent;          

 

        3. Pollsters shall inform the voters that they may refuse to answer; and         

 

            4. The results of the exit polls may be announced after the closing of the polls on election day, and must identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend.       xxx 

SEC. 39. Mass Media Columnist, Announcer or Personality Running for Public Office or is a Campaign Volunteer. – Any mass media columnist, commentator, announcer, reporter, on-air correspondent, or personality who is a candidate for any elective public office, or is a campaign volunteer for or employed or retained in any capacity by any candidate, political party, or party-list group, or organization, and/or coalition thereof, shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period: Provided, That any media practitioner who is an official of a political party or a member of the campaign staff of a candidate, political party, or party-list group, organization, and/or coalition thereof, shall not use his/her time or space to favor any candidate, political party, or party-list group, organization, and/or coalition thereof.  xxx         

 

        SEC. 42. Election Offense. – Any violation of RA 9006 and these rules shall constitute an election offense punishable under the first and second paragraphs of SEC. 264 of the Omnibus Election Code in addition to administrative liability whenever applicable.  xxx

Election law & election campaigns, The President

Roadside

       The phone always rings when you’re on the street; but this was a pleasant call because I haven’t heard from the person in a while. A reporter-friend asked me what I thought of the following:    croppedafternoon.jpg

         Since the legitimacy question has been hounding the President, and continue to hound her and her candidates in this elections, would it be a good idea for her to order a recount of votes cast in the 2004 elections (election returns) in order to settle the doubt once and for all. So, we talked and chatted and speculated,  and talked about his blog and chatted some more (we talked about how there was a lynch mob out there in the blogosphere,  and I saw in someone else’s blog how he was almost lynched by the commentators there and he said that was the problem with the blogs;  although it was worse in other countries, there are bloggers who are just operators of politicians, opposition and administration, and they’re paid to snipe or lynch any blogger whom they feel is not on the side of their boss. Anyway.) Because I stopped to take the call, the cars behind were slowing down a bit, the road got narrower; so being a good citizen who obeyed traffic rules I had to cut the conversation short after we talked and chatted etc.       

           

         On his question, I said something like: Why would the President  order a recount when she had been declared the winner by Congress? And he said, to settle the legitimacy question. And I said, well, you could write about  that but you should not make yourself look naïve by saying you  actually believed she would order a recount of the ER’s. And he said, what if it was suggested to her, or what if there was enough public clamor for her to do a recount. And I said, maybe;  two years ago she would, when the Hello Garci conversations broke out, because she felt weakened that she even apologized publicly, that was her weakest; but she is not the same person she was two years ago; she probably feels stronger.        

          Anyway, here’s what is provided, legally, on whether she can order a recount.      

            Batas Pambansa 884 “Creating the Presidential Electoral Tribunal”: (I copied-and-pasted from chanrobles.com so I won’t have to type). It refers to a “contest”; a “protestant”; and it also states that “any registered candidate for President or for Vice-President of the Philippines who received the second and third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition xxx”        

                    In other words, the losing candidate may file the protest.  But it uses the word “may”. Can the declared winner file? It doesn’t make sense for the declared winner to file a protest or contest her own victory; legally anyway; and if you were a lawyer and she was your client, that’s what you would tell her. But here are the provisions: 

         Sec. 4. The Tribunal must decide the contest within twelve months after it is filed. In case of a tie between the candidates for President and/or for Vice-President involved in the contest, the Tribunal shall notify the Batasang Pambansa of such fact, in which case the President or Vice-President, as the case may be, shall be chosen by a vote of a majority of all the Members of the Batasang Pambansa in session assembled.

         Sec. 5. In case the protestant is declared the winner, he shall assume office by taking his oath in accordance with Constitution as soon as the judgment has become final.chan robles virtual

          Sec. 7. Any registered candidate for President or for Vice-President of the Philippines who received the second and third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition of contest with the Clerk of the Tribunal within thirty days after the proclamation of the result of the election of a purported winner.  

      

       But what if there were no legal “insensibility” about it, what did I think of it? What is my non-legal political opinion of it? I do not feel qualified to give political advice and usually refrain from going out of my field of practice or study/ profession.       But since the caller was a friend, here’s what I said; (my Dear-Abby advice):       

       

          It’s expensive. And, in a proceeding like that, you do not have control of a lot of factors. It will be a good forum/ arena for the opposition, they could grab every chance to question every ruling on every election return; you do not have control of grandstanding. You do not have control of the mass media and there would be widespread publicity, over which you do not exercise complete control. You do not have control of how the justices would rule on every election return. Most important, you do not have control of how long that would take; recounts take a year or more.                

            So, how do you solve the legitimacy question when the Garci tapes cannot be authenticated?           

                 Find the original, the entire tape. The cd-version is a compilation and not an uninterrupted original; so find the original and present it.               

           If that cannot be done, if the Garci tapes cannot be authenticated, how  do you solve the legitimacy question?           

              Win the mid-term elections in an honest and believable way. That will make you survive. It will not resolve the issue, but you might survive up to 2010, then after that, go abroad.                  

          But I guess…that’s going around the problem. How do you win the election if you cannot address the legitimacy question?          

                 I’ll give the classic formula: Consolidate those forces who are closest or most agreeable with you. Prioritize them. Because these are the people you will use to expand your base, reach out to more people, and convince others. And to get intel for you.  Find out who are plotting against you; but do not let them know what you know. Then break their alliances (of those who are plotting against you). Then win the elections. When you are down and out and isolated, do not embark on activities where you don’t have control over the crucial players; focus on activities you have control of.      

            That’s the classic formula. But I guess she already knows it. I’m just a lawyer.  I have to type an SPA and a pre-trial brief today. my cup of tea.