[EXPLAINER] Vote-buying is not just giving or taking cash
(First of two parts)
The crime of vote-buying is the most misunderstood and therefore committed most often. In the long list of election offenses under the Omnibus Election Code, vote-buying and vote-selling are, in fact, the first on the list of prohibited acts – the first of all commandments:
Section 261. Prohibited Acts. - The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling. -
(1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.
(2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations.
So what are the elements of vote-buying?
First, we must correct that common misconception that the law covers only candidates, political parties, and persons under their employ.
The law expressly says “any person,” meaning, even non-candidates are covered. Thus, it is not necessary to establish a concrete link with a candidate (which is impossible to do) for a vote-buying case to prosper. As with all things, the candidate will never do the vote buying himself, but always through barangay or purok leaders, who would go either house to house or summon voters to their houses to distribute the money or goods.
Under the law, those persons are by themselves already guilty of vote-buying and can immediately be arrested, even without warrant, if caught in flagrante. The actual link of the vote-buyer to the candidate need not be proven – establishing the fact that he buys votes in favor or against a candidate is already sufficient for liability to attach. If, however, such link is proven or if the vote-buyer confesses, then liability goes up or extends to the candidate, who now will be treated as the principal and, thus, equally liable as the vote-buyer.
Second, we note that vote-buying is done two ways.
One is vote-buying in its traditional sense, meaning one gives money to vote for a particular candidate; the other is “negative” vote-buying, where identified supporters of a rival candidate are paid for them to skip voting. Oftentimes, in return for the money, vote-buyers will put indelible ink on the the fingers of the vote-seller to make sure the latter will indeed not be able to cast a vote anymore.
While negative vote-buying is often mutually agreed upon by buyer and seller, some candidates however would go to the extent of committing kidnapping. It is common knowledge in Mindoro, for example, that some candidates would load Mangyan voters in trucks and lock them in rooms until the close of election day to prevent them from voting for the kidnappers' opponents – yes, to this extent.
Third, we need to correct the misconception that to commit vote-buying or selling, the transaction has to involve only money or cold cash.
The law says “money or anything of value.” It says “anything” – precisely because anything, whether P1,000 or P5. But one might say, everything has a value! Indeed, everything has a value, and everything given by a candidate to voters could fall under the phrase “anything of value.”
To me, the only exception are those listed by law as “lawful” election propaganda and expressly allowed to be given away, namely:
“Section 3. Lawful Election Propaganda. –
For the purpose of this Act, lawful election propaganda shall include:
3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length;
3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office;
To me, other than these two, the rule of thumb is that all articles that maybe given away by candidates during campaign or public rallies qualify as “anything of value.” Thus, giving them away constitutes vote-buying. So giving away of t-shirts, bandanas, shirts, hats, wallets, umbrellas, baller IDs, pens, lighters, fans, flashlights, and athletic goods or materials constitutes vote-buying.
Another interesting form of vote-buying is giving away cards that would translate to access to certain services or to goods or money that can be claimed elsewhere. Under our law, vote-buying does not only cover the actual giving of money or goods, but also “offers or promises money or anything of value.” These cards constitute a promise to give something, and therefore still qualify as vote-buying. The idiotic thing about this practice is that candidates would even stamp their names and put their faces on the card, which in turn becomes direct evidence against them.
It is also worth noting that Section 261 (a) also treats as vote-buying the acts of giving a promise of future employment or to make an expenditure or cause an expenditure to be made to a community. Do we not often hear local politicians in caucuses, rallies, and miting de avance promising jobs, a bridge, basketball court, palay-drying station, or whatnots? Or senatorial candidates promising to pass a law to provide mass insurance, fund a hospital, or increase the minimum wage?
These acts are also forms of vote-buying, punishable by imprisonment and disqualification from office.
The intent of the Omnibus Election Code to shield voters from any form inducements goes beyond criminalizing buying of votes in the form of cash. Unknown to most politicians and voters, giving drinks, food, and transportation 5 hours before, during, and 5 hours after a rally is an election offense punishable by “not less than one year but not more than six years.”
Accepting these benefits or rewards is also a crime, unknown to those who attend rallies. The Code provides:
Section 89. Transportation, food and drinks. - It shall be unlawful for any candidate, political party, organization, or any person to give or accept, free of charge, directly or indirectly, transportation, food or drinks or things of value during the five hours before and after a public meeting, on the day preceding the election, and on the day of the election; or to give or contribute, directly or indirectly, money or things of value for such purpose.
It is unthinkable that, despite being illegal, this practice is so prevalent that it has evolved into a culture of expectations, both on the part of the candidates (to give) and for the people (to receive). This got to be the most violated election rule of all time that whenever I brief and warn clients about it, I'm always met by howls of protestations.
Knowing the true scope of our law on vote-buying tells us how much of it is not implemented and is actually disregarded.
In the second part of this explainer, I will discuss the implementation and prosecution of our anti-vote buying laws.
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.