Despite backlash, Comelec says takedown of tarps and posters on private property allowed
MANILA, Philippines — The Commission on Elections, while open to recalibrating their now controversial policy of removing campaign tarpaulins and posters even on private property, is so far standing by its takedowns of materials it deems to be oversized, arguing that free speech is not absolute.
Comelec spokesperson James Jimenez told CNN Philippines’ “The Source” on Friday that posters expressing support for candidates are considered election materials and are subject to regulation.
“Freedom of speech accepts regulation in the proper instances. As mentioned in the Supreme Court, there’s a species of speech that becomes election propaganda and is therefore the valid constitutional subject of regulation,” Jimenez said.
In an advisory on Wednesday night, the Constitutional Law Cluster of UP Law, the Recoletos Law Center and the Civil and Political Rights Clinic - UP Clinical Legal Education Program said that the right to participate in the elections is not limited to voting but extends to the right to campaign as well.
"Political speech is a preferred right. And political speech during an election stands at a higher level," they said.
Jimenez cited the 2015 Supreme Court decision on Diocese of Bacolod vs. Comelec, which holds that there can be a type of speech by a private citizen that can be considered election paraphernalia which can be validly regulated by law.
"Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only," read a part of the decision.
Cherry picking?
But for election lawyer Emil Marañon, the Comelec seems to cherry picking portions of the Diocese of Bacolod ruling.
"It cannot deny that the overarching doctrine laid down in that case is that posters by private citizens are outside of the regulatory reach of the Comelec," Marañon told Philstar.com.
Marañon insisted that the regulation on the size of tarpaulins and posters laid down by the Comelec only applies to candidates and not to private citizens.
Jimenez also raised that the SC in the Diocese of Bacolod case made a distinction between advocacy and expressing support for candidates. The SC held that regulating advocacies by private citizens is unconstitutional.
But Marañon said that calling on people to vote for a candidate is also an advocacy.
"Don't we choose candidates on the basis of ideas and platforms they espouse? In Adiong vs. Comelec, the Supreme Court held that campaign materials do not only express names, but espouse ideas!" he said.
He added that the Comelec did not even make such distinctions when they removed posters and tarpaulins on private property and that they did not give prior notices to give the owners an opportunity to be heard.
Marañon was one of Vice President Leni Robredo's lawyers in archrival former Sen. Bongbong Marcos' failed election protest contesting the 2016 vice-presidential polls.
Threat of legal action
Beyond the legality of the takedowns, Jimenez claimed that the Comelec had the consent of owners to enter into their private properties to take down posters and tarpaulins election officers believe to be illegal.
"We asked to enter into those areas, we pointed out that the materials that were to be taken down were in violation of the rules, and the property owners either consented to us taking them down or themselves said that they would take them down on their own," he said.
In Barangay Ipil in Echague town, Isabela, a mural of presidential candidate Robredo and her running mate Sen. Kiko Pangilinan on a private property was painted over by the Comelec.
As seen in a Facebook Live video of Isabela Para Kay Leni-Kiko, the female property owner where the mural was painted initially insisted to a male Comelec personnel that they cannot paint over it as it was on her private property.
The Comelec personnel, however, said they are not trespassing as they can reach the mural, which was painted on a wall by the sidewalk.
“Magagalaw ho namin, kasi abot ho namin eh. Wala naman kaming pinapasok na compound,” he said. “Kung hindi ho namin kaya abutin, pa-filean na lang namin ng kaso iyong may ari. Ayaw niyo naman ho sigurong mangyari iyon.”
(We can tamper with that because we can reach it. We’re not entering any compound … If we can’t reach it, we’ll just file a case against the owner. You probably don’t want that to happen.)
The mural was painted over even if Jimenez earlier said that these are "not regulated."
"They’re not regulated because a lot of those were created even before the campaign season. So that’s a lot. You’re basically talking about every barangay that painted the names of officials on their walls. As far as I know, that’s not been the subject of regulation," Jimenez said in a February 8 press briefing.
Lawyers preparing case
"That the Comelec actually went to the extent of painting over a mural on a privately owned wall goes well beyond what they are legally empowered to do," Robredo spokesperson Barry Gutierrez told Philstar.com. "This has crossed the line from abusive enforcement to outright harassment."
Gutierrez said a number of "top notch" lawyers have already volunteered to take on the case of Robredo-Pangilinan supporters who were affected by Oplan Baklas and are preparing to file a case to address the implementation of Comelec’s policy.
"Several options are being considered, including filing directly with the SC," he said.
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