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MANILA, Philippines – An election lawyer wrote to the Commission on Elections (Comelec), formally urging it to suspend a part of its tarpaulin removal activities until it amends the supposed “arbitrary” policies governing the controversial “Oplan Baklas.”

The poll body has been in hot water for allegedly dismantling posters installed on private property without permission. Comelec spokesman James Jimenez had insisted they have the right to go after oversized campaign paraphernalia on private premises, but guaranteed due process had always been observed.

In his letter dated Monday, February 21, Romulo Macalintal argued that the 2001 Fair Election Act does not give the Comelec power to regulate the speech of non-candidates.

“The Comelec cannot prescribe what the law does not provide. The Comelec may find some gaps in the law, but it is not within its power to supply the gaps,” Macalintal wrote.

He said there is a need for the poll body to amend Comelec Resolution No. 10730, which details the implementing rules and regulations of the Fair Election Act.

Macalintal was specifically contesting a line that says “the Comelec may, motu proprio, immediately order the removal, destruction and/or confiscation of any prohibited propaganda material, or those materials which contain statements or representations that are illegal.”

“This is being used by your election officials in removing alleged oversized campaign posters posted on private properties of non-candidates without notice and hearing,” Macalintal said. “Such action is so arbitrary and clear violation of one’s constitutional right to his property and due process.”

“It is respectfully requested that upon receipt of this letter, an order be issued by the honorable commission directing the temporary suspension of the regulation on the campaign posters posted by non-candidates on private places with the consent of the owners,” he added.

For advocacy or for campaigning?

Central to the “Oplan Baklas” controversy are the different interpretations by the Comelec and its critics of a landmark 2015 Supreme Court ruling. There, the magistrates ruled in favor of the Diocese of Bacolod, which had questioned the Comelec’s order to remove an oversized poster installed on their property during the 2013 elections.

While some lawyers claimed that the ruling meant non-candidates can now install huge campaign paraphernalia on private property, the Comelec said the SC decision only allows oversized posters if it pushes for an advocacy of a social cause.

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The controversy behind the Comelec’s ‘Oplan Baklas’

In the pilot episode of Rappler’s new show Ask Your Election Lawyer, Emil Marañon III, who was once the chief of staff the late former Comelec chairman Sixto Brillantes Jr., pointed out that Comelec Resolution No. 10730 did not even make a distinction between advocacy-oriented posters and campaign-oriented ones.

“Did Comelec make that distinction before removing the posters? Did they just remove everything? What’s their point now in enforcing a categorization?” Marañon said in a mix of English and Filipino on Monday.

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Marañon, as well as Macalintal in his formal letter to the poll body, both disagreed with the Comelec’s interpretation of Diocese of Bacolod vs Comelec.

“The Team Patay poster was posted in the premises of the church in the context of the elections. It was clear that it meant an endorsement for or against a particular candidate,” Marañon said.

“It is respectfully submitted that when a person, especially a non-candidate, posted on his property a campaign material, he is expressing more than the name, he is espousing ideas,” Macalintal added, quoting a separate Supreme Court ruling from 1992.

Both Marañon and Macalintal have lawyered for presidential aspirant Vice President Leni Robredo, whose camp has cried foul over the Comelec’s tarp removal operations.

The Comelec has yet to issue a statement following Macalintal’s letter submission to the poll body, but it has stood by its “Oplan Baklas” activities.

“The Comelec’s policy is to ask for permission first from the property owners,” Jimenez said earlier on Monday. “We understand that many people have complained. The Comelec’s doors are open and we are willing to study the policy again.” – Rappler.com