A CONTROVERSY has erupted over the dismantling of oversized tarps erected inside private property. The argument raised by critics is that this is already an encroachment on free speech and a violation of private property rights.
We cite GR 205728 Bishop of Bacolod vs. Comelec, enacted in January 2013, in which the Supreme Court upheld the right of an individual to install an oversized tarp inside private property.
The judgment is relatively long. The bottom line is that the court ruled that Comelec cannot regulate the speech of private persons who are not candidates; all the more so if it is simply an embodiment of political advocacy. Here is what the court said: “Regulation of speech, in the context of electoral campaigns, carried out by persons who are not candidates or who do not speak as members of a political party who are, as a whole, primarily advocacy of a social issue for the public to consider in elections, is unconstitutional. Such regulation is incompatible with the guarantee of granting the widest possible range of opinions, coming from the electorate, including those which can catalyze a frank, uninhibited and robust debate in the criteria for choosing a candidate. “
The court ruled that the material was an expression of a private person’s advocacy against the Reproductive Health Act and not campaign paraphernalia. It should be noted that the tarp did not actively campaign for the candidates, but simply listed those who voted for the reproductive health law and labeled them “Team Patay” and those who opposed it and labeled them “Team Buhay”. The court ruled that this fell within the exercise of freedom of expression.
However, in the same judgment, the court also specified the conditions under which private speech can become electoral paraphernalia, and therefore be subject to Comelec’s regulatory powers, even if it is within a private property. This is the basis of Comelec’s authority for the dismantling of oversized tarpaulins.
Let me quote the court’s substantive decision on this issue and explain how it conferred legitimate authority on Comelec.
The court held that: “This does not mean that there cannot be some kind of speech by a private citizen which will not constitute campaign paraphernalia validly regulated by law. Regulation of campaign paraphernalia will still be valid constitutionally if it reaches speech of people 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 a declarative speech that , taken as a whole, has as its primary purpose only the endorsement of a candidate.” Thus, campaign paraphernalia, even by non-candidates, is subject to regulation as long as it explicitly endorses a candidate.
The court further held that: “The regulation (a) must be prescribed by law; b) reasonable; c) narrowly tailored to meet the objective of improving the opportunity for all candidates to be heard and to take into account the primacy of the guarantee of freedom of expression; and (d) manifestly the least restrictive means of achieving that objective.” It is an established fact that Comelec’s action complied with its resolution 10730, which is presumed to be lawful, unless challenged and judged by the court as violating the standards listed above.
The court also said that: “Regulation should relate only to the time, place and manner of rendering the message. In no case may the speech be banned or censored on the basis of its content.” It is clear that what is regulated by Comelec is the size of the cover, which qualifies as a way of conveying a message, and not its content.
Finally, and more relevant to the concerns of private property owners, the court ruled that: “For this purpose, it does not matter whether the speech is delivered with or on private property.” This is where Comelec draws its authority to regulate an oversized tarp even if it is placed inside private property.
However, it is clear that Comelec must remain respectful of private property rights. No Comelec agent can simply enter private property without notice and justified authorization. This is akin to the principle that governs the rule that no one may enter a private home even if a crime is suspected to have been committed without a search warrant. In this case, Comelec must first inform the private owner and allow him sufficient time to challenge the rule or comply with it. He must first obtain a court order if the owner refuses to remove the oversized tarp. Any unauthorized entry would amount to an intrusion, or even a home invasion, given that Comelec is a public administration acting on behalf of the State, which is a more serious crime.
Comelec spokesman James Jimenez assured everyone that proper procedures were being followed and urged aggrieved parties to file complaints, if necessary, so that this issue can be properly addressed.
What is discouraging, however, is knowing the level of knowledge of this decision, as well as its basis in case law. We can understand if ordinary citizens are not aware of this. However, even candidates and their campaigns are apparently unaware or misinformed about it. It is very depressing that even renowned election lawyers seem to ignore this important part of the court’s decision, which was written by Associate Justice Marvic Leonen. Indeed, the rights of private owners would be violated if there was a break and enter, and there was no notice, and permission to enter was not granted. However, while people are free to put up tarps inside their private properties, they are not totally free to put up oversized field tarps. They can, however, erect tarps defending the issues that their candidates support even if these cover their entire property.