Tale as old as time

In local communities, you could tell if a local candidate has come through and done the house-to-house campaign based on the posters and tarps on your street. Campaign propaganda appearing on private houses don’t just magically pop-up on the walls and gates of a succession of homes. True, one or two families on the street may be active supporters who, on their own, put up their manok’s posters. But it’s rare that entire streets would be as demonstrative of their “love” enough for heart on sleeve professions.

Should the propaganda appear also on the next door neighbors” facades, its more than likely that the candidate came knocking, followed by a postering team. This means a vehicle bearing ladders and campaigners with staple guns to attach the cardboard or tarpaulin posters. There would also be teams handing out handbills and other compliant paraphernalia: fans, calendars, t-shirts, arm-sleeves.

The jackpot would be when voters insist that their houses be postered, requests made within earshot of the candidate. Whether genuine or calculated, the gesture is music to a candidate’s ears as propaganda presence is an important bellwether of support in local races.

Are we really that free to use or offer our private homes for candidates’ purposes in a campaign? These and other existential questions torment campaign organizations on deciding how strictly to comply with Comelec rules, even the ones they disagree with.

From the perspective of a former candidate and campaign manager, I can confirm that rules are honored less in the breach than in their observance. Even in camps of incumbents, no soul rests easy until proclamation day. Until then, the fear of getting penalized on a technicality (which is bound to be recorded somewhere, for posterity) will strike fear in hearts. The stakes are simply too high.

Take downs. The current issue against the Comelec’s operation baklas in private residences is a seasonal one. In local races, we often hear the refrain of being targeted, especially when the Comelec drives tap the assistance of the LGU engineering offices. With incumbent local chief executives themselves candidates, it’s not surprising that challengers complain of being disfavored by the mayor’s or governor’s men. Nationwide, the uneven implementation of such drives is conceded. But the malice/oppression with which the Comelec is presently accused? It’s unwarranted. A tale as old as time.

National candidates whose supporters’ private properties have been subjected to the same operation are questioning the constitutionality of the law and the Comelec resolution implementing it. Right now, they’re still at the court of public opinion. But to bring a judicial challenge would be a good representative effort for all candidates. The effect of the same on political speech arguably abridges values of free expression and the fundamental right to use one’s own property.

The Supreme Court’s fractured decision in the notorious Team Patay v. Team Buhay Diocese of Bacolod case is getting renewed scrutiny. The way it’s being invoked, you’d think that decision writer Justice Marvic Leonen made a categorical pronouncement striking down Comelec resolution 9615 and the law it implemented, i.e. Sec. 3.3 of RA 9006, the Fair Elections Act.

But the case involved only the Comelec take down notices for the Diocese tarps. By its own terms, the decision also clarified that the Diocese Anti-RH Law propaganda, regardless of size and place, could not be validly prohibited for being the advocacy of a social issue (candidate endorsement was incidental) done by citizens. And, as it was not the candidate nor the political party that caused its display, it was not their speech.

The Diocese decision did not rule out the constitutionality of statutory regulation of campaign propaganda when put up by private persons, even if on private property. The Court conceded that for as long as the principal object of the expression is the endorsement of candidates, then the reasonable and content neutral regulation of the same can be valid.

Due understanding. Another case getting space is Timbol v. Comelec, oft the basis for insisting that notice and hearing should precede any such efforts to dismantle posters and billboards on private property, as a purely due process matter.

Here, we need to appreciate the distinction of the capacities in which the Comelec takes action. Comelec is a 3-in-1 administrative agency where executive, legislative and judicial functions combine under the same roof. Notice and hearing are essential when it exercises its quasi-judicial functions such as when deciding, in division or en banc, on a petition to cancel a certificate of candidacy. As in those cases against senator Bongbong Marcos, Jr. or as happened in Timbol.

But in the performance of its purely executive mandate, as in the enforcement and administration of its broad powers in the conduct of elections including the operation baklas, what is involved is not an election case. Involved is the simple implementation of a statute where the dual requirement of notice and hearing is not sine qua non.

Passages. Ricardo “Dong” Puno Jr. was a giant of the legal profession. In his several vocations and avocations, he stood out and excelled. His trailblazing talk show Viewpoint burst onto the scene in the turbulent, post Ninoy 1980s. The Dong Puno style of measured, incisive and cerebral questioning gifted us with keen insights to steady the nation in difficult times. By his example, he showed us how lawyers can be instruments of truth. Sec. Puno was one of my first role models.

I will always be grateful to him for taking an interest in my prospects. When I was younger and ambivalent on taking the leap to graduate study, he generously took the time to convince me that an LL.M. abroad was the right step. It was advice I sorely needed from a voice I was honored to hear from. That decision I never regretted, not just for how it enriched my experience as lawyer and academician, but mostly for the opportunity to apply myself and discover the endless possibilities that opened to me.

Our deepest condolences to his family.