Ex-Comelec officials say materials showing personal advocacy not illegal, should not be removed

ABS-CBN News

Posted at Feb 18 2022 12:38 AM

MANILA - Materials showing a person's personal advocacy posted within their personal property are not illegal and should not be removed by the Commission on Elections (Comelec), two former poll body commissioners said Thursday.

According to former commissioner Atty. Rene Sarmiento, materials that do not directly endorse a candidate and merely express a social message or advocacy are not considered as election propaganda, and should not be removed.

"Ang sinasabi ng Korte Suprema sa kasong 'yan, if it does not endorse a candidate, it simply delivers a social message or a social advocacy, that is not an election propaganda, at walang K ang Comelec para baklasin 'yan, tanggalin 'yan," he told Teleradyo.

(What the Supreme Court said in that case, f it does not endorse a candidate, it simply delivers a social message or a social advocacy, that is not an election propaganda, and the Comelec does not have the right to remove that.)

Sarmiento was referring to the ruling of the Supreme Court (SC) on the case of Diocese of Bacolod vs Comelec, which set the jurisprudence on non-candidates putting up campaign propaganda.

In its ruling, the SC stated that "[r]egulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who 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... For this purpose, it will not matter whether the speech is made with or on private property."

Sarmiento said a material becomes an election propaganda if it endorses a candidate, and thus it should follow the rules set by Comelec.

He, however, clarified that the removal of such campaign materials should not be arbitrary, and should follow the following conditions:

  • there must be a law providing for it
  • it must be reasonable
  • it must respect the privacy of freedom of communication
  • least restrictive of the rights of a citizen

"So kung ang ginagawa ng Comelec (if what the Comelec is doing ) will violate these four conditions even if there is a regulation, that will be declared null and void by the Supreme Court," Sarmiento explained.

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For former commissioner Atty. Gregorio Larrazabal, if a poster did not directly come from a candidate, or if it is merely an expression of a person's advocacy, then it should not be removed.

"Pero kung ilalagay mo, ikaw mismo ang gumawa ng billboard na ito 'yung advocacy, ito 'yung gusto mong iparating sa tao, but it's in a form of an advocacy, hindi puwedeng tanggalin 'yun because that is in conformity with the Supreme Court jurisprudence ng Diocese of Bacolod vs Comelec," he said.

(But if you will put up a billboard of your advocacy, your message to the people, but it's a form of advocay, that can't be removed because that is in conformity with the Supreme Court jurisprudence on the Diocese of Bacolod vs Comelec.)

"Akong advocacy 'yun, for example I want to paint my house red, I want to paint it blue, or pink, or yellow, whatever, karapatan ko 'yan. If I want to paint a picture of a candidate on my wall...that's my freedom of expression. Pininturahan ko 'yung pader ko ng mukha ng isang kandidato, eh aking pader 'yan eh. Hindi naman ang kandidato ang nagbigay sa akin niyan, ako mismo ang gumawa niyan," Larrazabal added.

(It's my advocacy, for example, I want to paint my house red, I want to paint it blue, or pink, or yellow, whatever, I have the right to do so. If I want to paint a picture of a candidate on my wall, that's my freedom of expression. I painted the face of a candidate on my wall, but that's my wall. It was not given to me by a candidate, I did it on my own.)

Larrazabal said it would be better for the Comelec and the different political parties and candidates to have a discussion and agree on the rules so as to avoid any misunderstanding.

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Commission on Elections (Comelec) came under fire Wednesday after several videos of its enforcers dismantling campaign materials in private properties went viral on social media, with some describing the incidents as "trespassing" and suppression of free speech.

During the day, Comelec's Oplan Baklas personnel dismantled some tarpaulins displayed at a Robredo-Pangilinan volunteers' center in Quezon City. Supporters of Robredo argued that the area is a private property, outside the jurisdiction of Comelec. 

Robredo's camp on Thursday said it was considering pursuing legal action against the Commission on Elections' removal of campaign materials for her presidential bid in the homes of volunteers.

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