Poll lawyer Romulo Macalintal to temporarily suspend the implementation of the rules on campaign posters in private properties.

In an email sent to Comelec on Feb. 21, he questioned Section 26 of Resolution No. 10730 where the Comelec gave itself the “motu proprio” power to remove campaign it considers as illegal.

“The Comelec cannot motu proprio, or on its own, just remove said campaign materials without notice and hearing or without giving the affected person the opportunity to be heard, otherwise his right to due process will be violated," Macalintal said.

Citing the decision of the Supreme Court (SC) in the 2015 case of Diocese of Bacolod vs Comelec, he stressed that “all the laws pertaining to election propaganda materials apply only to candidates and political parties and not to private persons or non-candidates and that the Comelec does not have the authority to regulate enjoyment of the preferred right to freedom of expression exercised by a non-candidate.”

“There is nothing in RA 9006 which provides that the law shall apply to non-candidates. All its provisions are directed to candidates and political parties. Thus, the Comelec cannot prescribe what the law does not provide. There might be some gaps in the law but it is not for the Comelec to supply the gaps, since its function is not legislative. Only Congress can amend laws,” Macalintal said.

On Comelec’s position that only “advocacy-based” campaign posters could be allowed in private places regardless of sizes, he argued that “when a person posts on his property a campaign poster, “he is expressing more than the name – he is espousing ideas," citing the ruling of the SC in the 1992 case of Adiong vs Comelec where Macalintal stood as Adiong’s counsel.

"In a word, when he posts such campaign material, he is expressing his own advocacy because the candidate’s advocacy and that of his supporters are indivisible, and it is fair to say that one’s choice of candidate represents one’s own advocacy”, said Macalintal.

He added that “the requirement that campaign posters should state the name and address of the one who caused its printing does not apply to campaign posters printed by a non-candidate who voluntarily paid for their printing without the knowledge of the candidate.”

Macalintal also cited the legal opinion of his fellow election lawyer, Emil Maranon, that “if you are not a candidate, a poster posted in pursuit of one’s support for a candidate is part of that person’s free speech.”

Finally, he asked the Comelec to delete that provision of Section 20(b) of Resolution No. 10730 which provides that “it is presumed that the candidates and political parties caused the posting of campaign materials outside the common poster areas if they do not remove the same within three days from notice."

Macalintal said that this “presumption of guilt” is not provided for in RA 9006 which violates the rule that rules to implement a law must always be in harmony with the law it seeks to implement.

He added this also violates a person’s constitutional right to be presumed innocent.

It is for these reasons that Macalintal requested that an order be issued by the Comelec directing the “temporary suspension of its said regulations to give it ample time to review them and to insure a uniform standard and policy for national and local candidates when the campaign period for the latter starts on March 25.”

The Comelec, in implementing Republic Act 2006 which regulates election propaganda materials, issued Resolution No. 10730 which it uses as its authority to remove or confiscate campaign materials which it considers as illegal like those posted in places outside the common poster areas or in excess of the sizes allowed by law.