MANILA, Philippines – The Commission on Elections (Comelec) is under fire for its alleged abuse of power when its “Oplan Baklas” – an initiative to take down unlawful campaign materials – kicked into full swing.

The controversy took a turn for the worse following reports that authorities dismantled posters installed on private property. Critics said this is a violation of the constitutional right to freedom of speech.

But what are the rules? Why is the Comelec doing what it is doing, and why does backlash continue to grow?

What’s in the law

Republic Act No. 9006 or the Fair Election Act details what counts as lawful election propaganda. This includes posters that do not exceed the maximum size of 2 feet by 3 feet, unless it is posted at the site of a rally, where its size can be up to 3 feet by 8 feet.

The law also says lawful election propaganda – adhering to size requirements – may be installed on private premises, as long as there is the owner’s consent.

For the 2022 elections, the poll body, in November 2021, released Comelec Resolution No. 10730, the implementing rules and regulations (IRR) of RA 9066 in connection with this year’s vote.

Under that resolution, the Comelec says individual posters even on private property “must comply with the allowable size (2 feet by 3 feet) requirements for posters,” and that “any violation shall be punishable as an election offense.”

The Comelec only began going after these oversized posters on February 8 because aspirants for the elections became “official” candidates on that day, when the campaign season started, and were thus already covered by election laws.

Where Supreme Court comes into the picture

In 2015, the Supreme Court (SC) issued a ruling on an important election case, one that is being cited to bolster the argument that the Comelec can no longer regulate oversized posters on private property.

Two years prior, the Diocese of Bacolod posted oversized tarpaulins (around 6 feet by 10 feet) within a private compound. That poster categorized 2013 senatorial candidates depending on whether they were against (“Team Buhay”) or supportive (“Team Patay”) of what was then the reproductive health bill.

Because the poster exceeded the Comelec’s size requirements under the Fair Elections Act and its IRR, a local election officer ordered its removal. But the Diocese of Bacolod went straight to the SC, and the magistrates, in 2015, ruled in the priests’ favor.

That ruling read, “Limiting the maximum size of the tarpaulin would render ineffective petitioners’ message and violate their right to exercise freedom of expression.”

The SC added that the Comelec had “no legal basis to regulate expressions made by private citizens.”

Election lawyer Emil Marañon, in a Rappler piece for the 2016 polls, even wrote that the SC ruling meant that non-candidates can now install huge campaign paraphernalia on private property, and the Comelec can’t go after them.

How the Comelec appreciates the Supreme Court ruling

If you ask Comelec spokesman James Jimenez, he would tell you to “read the case rather than just go by [its] final lines.”

In a press briefing on February 8, he read a portion from the same ruling: “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.”

His point is: the “Team Buhay, Team Patay” poster was protected speech because it pushed for an advocacy of a social cause. Oversized campaign paraphernalia, he said, is a different thing, and that the Comelec can regulate them if the overall purpose is to endorse the candidate.

But can the Comelec give some huge tarpaulins a free pass if they do not directly say you should vote for someone? Jimenez said don’t take it literally.

“I am not saying you have to have the words ‘Vote for’ there. I’m just saying if the material has for its overall purpose the declaration of an endorsement of a candidate, that can be validly regulated,” he said.

Some former poll officials think otherwise

Some former poll officials have a different interpretation of the SC decision.

Former Comelec commissioner Rene Sarmiento said the Comelec should still have been careful, saying that Diocese vs Comelec indicates that the right to property, freedom of expression, and freedom of speech should be taken holistically.

Even recently-retired commissioner Rowena Guanzon said the Comelec can’t run after her billboard supporting a party-list group which was installed on private property, citing the same 2015 SC ruling. (It is important to note though that Guanzon was still part of the Comelec en banc when Comelec Resolution No. 10930 was released.)

What ‘Oplan Baklas’ critics say about trespassing

Constitutional law professors, law groups, and some former poll officials also believe that “Oplan Baklas” personnel cannot just enter private premises without prior notice or a search warrant.

Guanzon and her fellow former Comelec commissioner Luie Guia said the Comelec runs the risk of being accused of trespassing.

Poll watchdog Legal Network for Truthful Elections added that the Comelec should have notified the private property owners first about the alleged violation, and give them the chance to defend themselves.

For election lawyer Romulo Macalintal, a legal counsel for Vice President Leni Robredo, the Comelec cannot on its own take down oversized posters from private property without providing the aggrieved party his or her opportunity to be heard, citing the 2015 SC decision on Timbol vs Comelec.

Asked to respond to this, Jimenez said on February 16 that those who have grievances can file a complaint.

Marañon, a former chief of staff for a Comelec chairperson, said the poll body could have addressed the issue more proactively.

“When there are already documented cases of abuses from the Comelec’s end, isn’t it wrong for it to say ‘Just file a complaint’ instead of ‘We will investigate and fix the implementation on the ground so that this will not happen again’?” he said in a Facebook post in Filipino.

The Comelec has yet to address warnings issued more recently by some lawyers, and fears that “Oplan Baklas” might be weaponized against only some candidates. – Rappler.com