Comelec has no power to remove oversized campaign materials posted on private places

(The Commission on Elections has come under fire from various quarters – constitutionalists, election lawyers, free-speech advocates, and not just candidates and political parties – for its controversial “Oplan Baklas” that took down campaign materials  even within private property. Here, veteran election lawyer Romulo B. Macalintal lays down clearly the arguments for why Comelec should walk back from this move, which Macalintal said goes against the Supreme Court ruling in the diocese of Bacolod vs Comelec).

THE Commission on Elections (Comelec) has no power to remove campaign materials posted by non-candidates on their private properties even if such materials do not comply with the size prescribed by the Comelec, without notice and hearing or without giving them the opportunity to be heard.

Comelec’s position that it has provided in Section 28 of its Resolution No. 10730 that it can “motu proprio (on its own) immediately order the removal of such campaign materials” is untenable and unconstitutional, as it denied said non-candidates their fundamental right to due process.  Comelec has easily forgotten how it was reminded by the Supreme Court (SC) in the 2015 case of Timbol vs Comelec that while it may have “motu proprio” power, the same could only be exercised after due notice and hearing.

The SC held that “this motu proprio authority is always subject to the (person’s) opportunity to be heard – an essential element of procedural due process. In election cases, due process requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand.”  The said campaign materials are properties of the owners and they cannot be deprived of their constitutional right to use it without due process.

Hence, the Comelec should immediately stop tearing down alleged oversized campaign materials posted on private properties with the consent of the owners who are non-candidates, without notice and hearing. 

Furthermore, Section 9 of Republic Act No. 9006 pertaining to the power of the Comelec to regulate the posting of campaign materials “only apply to candidates and political parties” as held by the SC in the 2015 case of Diocese of Bacolod vs Comelec.  

 Surely, the said provision of RA 9006 does not give the Comelec the authority to prescribe the size of a campaign material that a person could post on his own private property. The SC added that the “2 feet by 3 feet size, at certain distances, if cannot be read by the general public would render speech meaningless.  It will amount to the abridgment of speech with political consequences.”

The Comelec’s position that the case of Diocese of Bacolod case pertains only to “campaign materials about advocacies” is misleading because the SC decision was not made pro hac vice (for that case only).  The doctrines laid down by the SC, in that case, are applicable in all issues pertaining to non-candidates’ right to use their own private properties in the exercise of their right of free expression.

In a word, the SC said that “the Comelec does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate.”

Hence, non-candidates may challenge, refuse or should not allow anyone to remove their alleged oversized campaign materials posted on their own private properties without being given the opportunity to be heard since the size of said posters does not at all affect anyone’s constitutional rights nor does it endanger any state interest.

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