Almost two years after the 2013 elections, the Supreme Court (SC) quietly promulgated its decision on the controversial case of The Diocese of Bacolod v. COMELEC (GR Number 205728, January 21, 2015). The decision did not get as much coverage as the controversy it stirred in 2013, but it was one of the most important election cases decided by the Supreme Court that year.
The controversy arose when Bishop Vicente Navarra of the Diocese of Bacolod posted a tarpaulin on the front wall of the San Sebastian Cathedral in Bacolod City. Each tarpaulin measured more than 6’ x 10’. It contained the heading “Conscience Vote” and listed candidates as either “Team Buhay” (those who voted against of the reproductive health law) with a check mark, or “(Pro-RH) Team Patay” (those who supported the RH law) with an “X” mark. (READ: Sliced? Team Patay poster still illegal – Comelec)
The election officer of Bacolod City treated the tarpaulin as an “election propaganda,” and immediately sent a notice to remove the same on the ground that it exceeded the maximum allowable size set by Republic Act Number 9006, which is 2’ x 3’. The Bishop of Bacolod refused to remove the tarpaulin, and went straight to the Supreme Court, questioning the notice to remove issued by the city election officer on the ground of free speech and freedom of religion. (READ: Diocese defies Comelec on Team Patay poster)
The case was procedurally bizarre. The High Court entertained it despite the fact that it had been prematurely elevated from a city level incident, effectively bypassing the Commission on Elections (Comelec) en banc. But more bizarre was the ruling, which reached the point of effectively abrogating many pertinent provisions of Republic Act Number 9006 or the Fair Elections Act.
In ruling in favor of the Bishop of Bacolod, the SC premised its decision on the theory that election propaganda are protected speech. Imposing a maximum size on the tarpaulin would therefore violate the bishop’s right to exercise freedom of expression.
It ruled that Comelec’s power to regulate the exercise of freedom of expression is confined to: franchise holders and candidates. As regards non-candidates, it said, “Comelec had no legal basis to regulate expressions made by private citizens.”
With that, the SC ruled that Republic Act Number 9006 regulating the posting of campaign materials only applied to candidates and political parties. This means that election propaganda made at the behest of non-candidates would no longer be covered by the size restrictions or by any existing regulations in Republic Act Number 9006.
To illustrate the practical impact of this new interpretation, non-candidates can now put up campaign propaganda as big as the billboards along Guadalupe Bridge or EDSA and contract unlimited TV, radio, and print ads, free from any form of regulation.
By necessary implication, the expense incurred in those election propaganda can no longer be attributed to the candidate that they feature or who benefit from them. In the past elections, such 3rd-party expense was treated as a donation and taken into account in computing the campaign expense of a candidate.
This poses a problem on the campaign expense monitoring by the Comelec. It does not only dilute the law by carving such a sweeping exception, but it creates a tool to defeat the very regulation. How difficult would it be for a candidate to ask his mom or a relative to put up a billboard for him and make it appear that he knows nothing about it?
The SC decision itself recognizes this repercussion, exactly pointing out the scenario that will most likely happen:
“On the one extreme, this can take illicit forms such as when endorsement materials in the form of tarpaulins, posters, or media advertisements are made ostensibly by ‘friends’ but in reality are really paid for by the candidate or political party. This skirts the constitutional value that provides for equal opportunities for all candidates.
“On the other extreme, moved by the credentials and the message of a candidate, others will spend their own resources in order to lend support for the campaigns. This may be without agreement between the speaker and the candidate or his or her political party. In lieu of donating funds to the campaign, they will instead use their resources directly in a way that the candidate or political party would have done so. This may effectively skirt the constitutional and statutory limits of campaign spending.”
That the decision sees these two scenarios as rather “extreme” shows the decision’s degree of detachment from electoral realities. Elections in the Philippines are never as rosy as the decision assumes. To borrow the words of Justice Puno in Loong v. Sakur Tan (GR Number 133676, April 14, 1999), “[o]ur elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post.”
Despite recognizing the ill repercussion of the decision, the SC took the convenient route by simply saying: “However, as agreed by the parties during the oral arguments in this case, this is not the situation that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the part of the Comelec.”
To appreciate the effect of the Diocese of Bacolod case, it should be correlated with the decision in GMA v. COMELEC (GR Number 205357, September 2, 2014). The Supreme Court struck down as unconstitutional the Comelec policy interpreting the 120 minute cap on television advertisement on a “total aggregate” basis, not on a “per station” basis, also on the ground of free speech. (READ: SC junks Comelec limits on airtime of political ads)
This effectively allows each candidate to advertise for 120 minutes in each station during the campaign period. While the ruling did not declare the imposition of a time cap per se as unconstitutional, the policy now stands on shaky grounds – the very decision alludes that such time limitation constitutes a restriction on the freedom of speech of candidates.
While I do not contest the primacy of free speech, I believe it cannot be cherished in a vacuum and brought to the level that is unreasonably absolute. While the High Court understandably has the duty to secure the unhindered flow of information and ideas, it also has to duty to protect the public from the tremendous impact of the unregulated proliferation of election paraphernalia on the aesthetics of our communities and on the environment.
Above all, its duty to protect the public from the ill effects of election propaganda is eloquently discussed by Justice Florentino Feliciano in his foretelling ponencia in the 1992 case of National Press Club v. COMELEC (GR Number 102653, March 5, 1992). I quote:
“Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be totally disregarded. Realistically, the only limitation upon the free speech of candidates imposed is on the right of candidates to bombard the helpless electorate with paid advertisements commonly repeated in the mass media ad nauseam. Frequently, such repetitive political commercials when fed into the electronic media themselves constitute invasions of the privacy of the general electorate. It might be supposed that it is easy enough for a person at home simply to flick off his radio of television set. But it is rarely that simple. For the candidates with deep pockets may purchase radio or television time in many, if not all, the major stations or channels. Or they may directly or indirectly own or control the stations or channels themselves. The contemporary reality in the Philippines is that, in a very real sense, listeners and viewers constitute a “captive audience.”
The paid political advertisement introjected into the electronic media and repeated with mind-deadening frequency, are commonly intended and crafted, not so much to inform and educate as to condition and manipulate, not so much to provoke rational and objective appraisal of candidates’ qualifications or programs as to appeal to the non-intellective faculties of the captive and passive audience. The right of the general listening and viewing public to be free from such intrusions and their subliminal effects is at least as important as the right of candidates to advertise themselves through modern electronic media and the right of media enterprises to maximize their revenues from the marketing of “packaged” candidates.”
In closing, I am certain that in due time the two cases will invite the same infamy as the decision in Penera vs COMELEC, where the SC, in its effort to assert a point, completely missed the bigger picture. Unfortunately, the new rules have been set and there is nothing much that can be done about it at this point.
To the candidates, take advantage of this change in the rule.
To the printers and media companies, enjoy the boom!
And us, the general public, I guess we just have to prepare ourselves to be inundated! – Rappler.com
Emil Marañon is an election lawyer who served as chief of staff of recently retired Comelec Chairman Sixto Brillantes Jr. He is currently studying Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar.