2022 PH Elections - Voices

[Just Saying] Criminal or immoral: Accepting money during election period

Mel Sta Maria
[Just Saying] Criminal or immoral: Accepting money during election period

Graphic by DR Castuciano

A price of one’s vote should be received – not for the recipient to sell his right to choose a public servant but to identify the vote buyers and push accountability. What do you think?

A crime must be actor-specific. This is because a person must squarely fall within the ambit of a penal statute, before he/she is  put to jail. The authorities, by some clever argument, must not be allowed to conjure up an incrimination, which is not clearly within the law. 

Let us examine the law on vote-buying/vote-selling. The Omnibus Election Code (OEC) is a Marcos-regime creation approved on December 3, 1985.  It was legislated by the previous  rubber-stamp Batasan Pambansa in time for the 1986 February snap election. 

Section 94 of the OEC defines expenditure as including “the payment or delivery of money of anything of value, or a contract, promise or agreement to make an expenditure, for the purpose of influencing the results of the election.”

However, under Section 261 (a1) which spells out what constitutes vote-buying and vote selling as a crime, the law  enumerates three separate and distinct  ways of commission. From the provider’s vantage point, a violator is one who: 

  1. Gives, offers or promises money or anything of value;
  2. Gives or promises any office or employment, franchise or grant; and
  3. Makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made.

On the side of the recipient, Section 261 (a2) provides that any person “who solicits or receives, directly or indirectly, any expenditure  or promise of any office or employment … for any of the foregoing considerations” shall be punished. 

Unlike a recipient of “expenditure” and of “promise of any office or employment,” the recipient of the giving, offering and promising “of money or anything of value” indicated as the first form of commission  in Section 261 (a1) is omitted in Section 261 (a2).  It was very easy for the Batasan Pambansa to include such recipient or  to expressly provide  that acceptors of all acts  mentioned  in Section 261 (a1) shall be liable. But it did not.  

Some may argue that  “expenditure” in Section 261(a2) must be expansively interpreted to include  both the giving, offering and promising “of money” and “expenditure” in  Section 261 (a1). They can also argue that  the phrase “any of the foregoing considerations” is ensnaring enough to include what has been omitted. If this were so, then, providing two distinct  acts in one provision but with the same meaning or, at the very least, inclusive of one another will be a superfluity.  The Supreme Court said that “a legal provision, phrase or word must not be construed as to be meaningless and a useless surplusage in the sense of adding nothing to the law or having no effect on it.” (LLuz v. Comelec [2007])  Each manner of statutory commission  must be given its unique application. 

And if this is not the case, does not the “promise of office or employment”  also involve payment of money by way of salaries within the purview of “expenditure”? So, why should it have a separate express inclusion in Section 261 (a2), distinct from expenditure? The answer is simple: each type of commission is different. And if each is different and the recipient of the giving, offering and promising of “money or anything of value” is not directly and expressly mentioned, then the conclusion is that such first type of commission must have been deliberately excluded by the legislators.    

The Supreme Court instructs us in the same case that “a statute imposing criminal liability should be construed narrowly in its coverage such that only those offenses clearly included, beyond reasonable doubt, will be considered within the operation of the statute.”

What due process demands

Considering that disenfranchisement of the right to vote and deprivation of liberty are severe penalties, inferences that a suspect falls within the law’s  ambit, though strong and highly probable, is not enough.

Due process demands that before citizens can be deprived of their constitutional rights, they must be informed of the precise  charges against them, determined from the explicit provision of the alleged violated law.   If the law makes an omission, then it excludes. The Supreme Court said “whatever is not plainly within the provisions of a penal statute should be regarded as without its intendment.” (Centeno v. People, [1994]).  

Due to  the omission in section 261 of the OEC, it is wrong to immediately accuse a person of a criminal act for merely accepting an offer of money. Neither is it accurate to conclude that a person advising the acceptance of money is per se encouraging vote-buying on the basis of the law, with all its inclusions and omissions. There must be context.  

Take this hypothetical example: a corrupt candidate  stole billions of money from government funds which was intended for health care facilities, services, and benefits for frontline workers. This ill-gotten wealth — which truly belongs to the Filipino people — is used  to finance his campaign. During his sorties, he gives out P1,000. As a giver, he is liable under the express provision of the law. But should the acceptor be guilty of vote-buying and vote-selling in the absence of an express and direct provision for liability in Section 261 (a2) of the OEC? 

And prescinding from the legalities, is it moral for the acceptors to take the money stolen from government coffers, then thereafter vote according to their conscience? Is the acceptance of the money merely retrieving what truly belongs to them? Remember the story leading to the 1986 snap election about Jaime Cardinal Sin openly telling the people to accept the money but vote according to their conscience. I suspect that Cardinal Sin   knew the omission of  Section 261 (a2).  

Recipient’s responsibility

And so here we are again. Vice President Leni Robredo appears to have made a similar statement. Surely, she does not condone vote-buying/vote-selling. Nobody does, except corrupt candidates and their cohorts. VP Robredo is not corrupt. Her open track record proves that. Did she really state something imprudent both legally and morally? I do not believe so. 

Pope Francis in one of his sermons said that it is the hospitals without medicine that pay for corruption; it is the patients who don’t get care that pay for corruption; it is the children without education who pay for the corruption of the powerful. Corruption is paid by the poor. 

So  what do you think about this notion: the momentary relief that a candidate gives through money stolen from the people, albeit not freely but for the price of one’s vote, should be received, not for the recipient to sell his right to choose a public servant –  for voting must still be in accordance with one’s  conscience – but as a small deposit to ensure greater accountability under our anti-graft laws. It can be the recipient’s opportunity to  identify the vote buyers, not vote for them, and thereby  help  prevent these people  to be in a position  again to buy a person’s conscience and dignity in the future.  Does this make sense?

Finally, it is important for the Comelec to clarify its position on this vote buying/vote selling issue  – especially as to the recipient – and provide the public of its  legal bases and supporting authorities. They must be strong and convincing. A mere casual opinion will not give proper guidance. – Rappler.com

Mel Sta Maria is dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU and the Ateneo School of Law, hosts shows on both radio and Youtube, and has authored several books on law, politics, and current events.