On 16 February 2022, the Commission on Elections (COMELEC) started its Oplan Baklas in the National Capital Region (NCR) to tear down, remove, or confiscate unlawful election propaganda. Many criticisms have emerged as a result of the initiative. On the one hand, supporters and political candidates affected by the Oplan Baklas have claimed that election regulations on campaign materials only cover candidates and political parties and not ordinary citizens, thus the said removal of the election paraphernalia in private properties is unlawful and violates the freedom of speech of their supporters. On the other hand, COMELEC spokesperson James Jimenez countered these and said that “freedom of speech accepts regulation in the proper instances” and that “there are species of speech that become election propaganda and are, therefore, valid constitutional subjects of regulation.”
LENTE believes that there are important nuances arising from the commonly cited regulations and rulings in relation to the said issue which must be raised and highlighted.
The first important nuance is the two types of speech that are involved in the current issue. The first one is election paraphernalia by non-candidates for advocacy of a social issue and the second one is private speech amounting to election paraphernalia. According to the Diocese of Bacolod vs. COMELEC case, private speech amounting to election paraphernalia can be regulated by COMELEC. On the other hand, COMELEC cannot regulate election paraphernalia by non-candidates for advocacy of a social issue. This falls within the purview of the Constitutionally-protected exercise of one’s freedom of expression.
The second important nuance concerns the regulation on the freedom of speech of non-candidates amounting to election paraphernalia. Again, the Supreme court in Diocese of Bacolod vs. COMELEC provides guidelines on whether regulation on non-candidate electoral speech is valid. It upheld that regulation must only be to the time, place, and manner of the rendition of the message, i.e., a content-neutral regulation. In no situation may the speech be prohibited or censored based on its content. Thus, a content-based restraint or censorship is unconstitutional. Taken within this context, it will not matter whether the election paraphernalia is on private or public property.
The third important nuance is that any regulation on non-candidate electoral speech is valid only when due process is determined – that is, after due notice and hearing.
The necessity of providing that exception involves the necessary elements of ensuring that an election has public confidence in the process. Allowing regulation of private speech amounting to election paraphernalia affects whether there is accountability, transparency, and inclusiveness in the electoral process.
Accountability in this context requires that the constitutional and statutory limits of campaign spending and the constitutional value that provides for equal opportunities for all candidates are not circumvented. The value of protecting the constitutional and statutory limits of campaign spending and the constitutional value that provides for equal opportunities for all candidates also connects to the standards of transparency and inclusiveness. Transparency requires that all candidates are given an equal opportunity to present themselves and their advocacies to voters, while Inclusiveness requires an equal opportunity to run and compete in elections.
The Philippine electoral context shows the low level of electoral competitiveness and low level of inclusiveness in the country. Seats are often won by those with financial superiority and by members of political dynasties who more often than not also enjoy financial superiority over the average Filipino citizen.
LENTE believes that the rationale for such regulation must not be lost upon all election stakeholders in the discourse. The reason why we have these limits is to provide equal opportunities for all candidates. If the limits on campaign spending and ensuring equal opportunities for all candidates can be easily circumvented, it could result in candidates with more financial resources flooding voters with an almost unlimited amount of election paraphernalia as they will be allowed to spend an almost unlimited amount of money and resources for their campaign. This will effectively drown out the speech of those with fewer resources. It is also imperative to revisit the current legal framework on Campaign Finance to make it more responsive to the changing campaign milieu, as we have seen in this election’s campaign controversies.
We also enjoin COMELEC to ensure that in the implementation of the guidelines to Oplan Baklas and the regulation of election paraphernalia, constitutional rights are upheld. Any act to stop any illegal election activity or confiscate, tear down, and stop any unlawful, libelous, misleading, or false election paraphernalia must be done following due process after due notice and hearing.