It depends on what (or whose) tarp it is

If parishioners put up on the fence in front of their church a 6 meters x 4 meters pink billboard whose only message is the commandment ‘HUWAG MAGNAKAW!’ (Thou shalt not steal!) will it be taken down for violating the rules for election campaign materials?

This was among the questions that occurred to me while watching social media videos of campaign tarpaulins being taken down during the Commission on Elections’ launch this week of “Operation Baklas” (Take Down) against prohibited campaign materials.

But what exactly is prohibited? The Comelec had ample time since 2016 to confer with all affected parties and lay down clear and fair campaign rules to minimize the sort of confusion that marked this week’s removal of disallowed tarps.

The rules being enforced surprised many voters and volunteers whose tarps that they had posted on their houses and fences declaring their preferred candidates were hauled down by police-backed “Baklas” workers.

In some places, tempers flared up with voters grabbing back their tarps and insisting on their right to freely express their preference. Lawyers and advocates waded in, offering their services to those who believe that their basic rights have been violated.

The confusion and the attendant intemperate language, especially on social media, could have been avoided had the rules been agreed upon long before the 90-day campaign began on Feb. 8 for the May 9 national elections.

To lower the heat, the Comelec may want to suspend for a few days the “baklasan” and the complainants agree not to file charges yet. After a quick updating, the rules can be published and explained with the help of the support groups of the candidates themselves.

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After that collective deep breath, the Comelec, aided by its deputies from the police and other agencies, can resume enforcing the campaign rules, including those on the size, content and location of the posters, tarps and similar materials. (The authorized size is 2 feet x 3 feet.)

As the body assigned by the Constitution to manage elections, plebiscites, initiatives, referendums and recalls, the Comelec must not only be fair but also look fair. If it cannot guarantee the even application of the rules, it better not enforce them at all.

Candidates themselves would benefit from fair play. Note, for instance, that the removal of tarps of underdog bets as shown in video clips on social media tended to leave an unfair impression that candidates whose tarps were not touched yet were being favored.

Though it could be cumbersome, is it better to follow suggestions to go through the ”due process” of notice and hearing before enforcers remove tarps and similar displays that in their minds were not done or displayed according to the rules?

Even if it wants to rush action now on pending matters, the Comelec is handicapped. Three of its seven commissioners retired on Feb. 2 after serving their seven-year terms and their replacements have not been nominated.

During the election period (90 days before the May 9 elections and 30 days after), the Comelec is saddled with tasks delegated from regular agencies. To minimize partisan abuses, many sensitive government operations have been placed, by law, under its control and supervision.

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Sought for his opinion on the enforcing of campaign guidelines, election lawyer Romy Macalintal said of the “Baklas” operation:

“Comelec has no power to remove campaign materials posted by non-candidates on their private properties even if such materials do not comply with the size it has prescribed, without notice and hearing or without giving them the opportunity to be heard.

“The Comelec should immediately stop tearing down alleged oversized campaign materials posted on private properties with the consent of the owners who are non-candidates, without notice and hearing.”

He cited the Supreme Court ruling in the 2015 case of Timbol vs. Comelec which said that while the poll body may have a motu proprio (on its own) power, it could only be exercised after due notice and hearing.

He added: “Non-candidates may challenge, refuse or should not allow anyone to remove their alleged oversized campaign materials posted on their own private properties without being given the opportunity to be heard, since the size of said posters does not at all affect anyone’s constitutional rights nor does it endanger any state interest.

Furthermore, Sec. 9 of RA 9006 pertaining to the power of the Comelec to regulate the posting of campaign materials only applies to candidates and political parties as held by the SC in the 2015 case of Diocese of Bacolod vs Comelec.”

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Macalintal’s counsel triggered other questions aside from the example in our opening paragraph of a pink billboard in front of a church that reminds parishioners of one of the Ten Commandments against stealing.

Another question: If my tarp is hung on the side of my fence facing the street, is it considered outside my property?

What if instead of 2 feet x 3 feet, my tarp is 2.2 feet x 2.8 feet? Or if we have a giant-size tarp, can we cut it up into several 2 feet x 3 feet sizes and place them beside one another as in the original?

Is it against the rules to hang pink ribbons or colored strips of fabric on fences or the branches of trees?

(We are reminded of the yellow ribbons that sprouted on trees, lamp posts, everywhere, to welcome opposition leader Ninoy Aquino on his return on Aug. 21, 1983, to help find a peaceful end to the regime of then-dictator Ferdinand Marcos. But Ninoy was shot dead upon arrival.)

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NB: All Postscripts are also archived at ManilaMail.com. Author is on Twitter as @FDPascual. Email: [email protected]