In the midst of the 2013 elections, a tarpaulin was posted within the front walls of a cathedral in Bacolod City. The tarpaulin, measuring approximately 6 feet x 10 feet, had the words “Team Patay (Dead)” with an X mark, and “Team Buhay (Alive)” with a ? mark. Certain electoral candidates were then classified to either Team Patayor Team Buhay, depending on their vote on the Reproductive Health Law.
Citing violations on size limitations prescribed by the implementing rules and regulations of Republic Act No. 9006, otherwise known as the Fair Election Act, the Commission on Elections (Comelec) ordered the removal of the tarpaulin.
The Fair Election Act, it must be noted, was enacted consistent with the Constitutional provision of ensuring equal opportunity for public service, including access to media, time, and space, and ensuring free, orderly, honest, peaceful and credible elections. It was likewise passed to ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination. The law accordingly provides, among others, limitations on the use and display of election propaganda. In this case, the lawful size for election propaganda should not exceed 2 feet x 3 feet. Because the tarpaulin did exceed the prescribed size, its removal was ordered. Elsewise, the tarpaulin’s proponents would run the risk of prosecution for an election offense.
Essential to the Comelec’s resolution is its treatment of the tarpaulin as election propaganda, a campaign material, which is within its purview to regulate in the conduct of elections. True, the State through Comelec as one of its arms has the power to limit electoral advertisements in order to achieve what is envisioned by the law. There are some things worth noting in the Comelec’s order, however. The tarpaulin sought to be removed was neither sponsored nor paid for by any candidate. It was placed on private property and involved an expression of a private group’s advocacy on the Reproductive Health Law, although given an apparent electoral slant. Lastly, while the tarpaulin may influence the success or failure of the named candidates and political parties, this does not necessarily mean that it is election propaganda. These considerations are worth mentioning because they affect two related fundamental rights of an individual under our Constitution, the freedom of speech and the freedom of expression, which do not only cover vocal speech but also include other symbolic manners of communication.
In this case, the tarpaulin contained speech on a matter of public concern, particularly to express the proponents’ advocacy and view on the votes made in passing the Reproductive Health Law, albeit incidentally promoting or not promoting an electoral candidate. On the other hand, the Comelec’s order is anchored on the fact that the manner by which the opinion is expressed does not conform to the size requirements of the law and that if such will not be regulated, the same may be abused by some electoral candidates who could then solicit the help of private individuals to skirt the constitutional provision on equal opportunities for all candidates.
The Supreme Court, when this matter was brought before it, recognized that the form of expression is just as important as the information conveyed, that it forms part of the expression. It said that size does matter. This is because the size -- a larger tarpaulin, that is -- enhances efficiency in communication, underscores the importance of the message to the reader and allows for more inceptions of ideas, catalyze reactions to advocacies, and contribute to a more educated and reasoned electorate. Nonetheless, the Supreme Court held that the guarantee of freedom of expression to individuals without any relationship to any political candidate should not be held hostage to the possibility of abuse by those seeking to be elected. It held that no unreasonable restrictions of the fundamental and preferred right to expression of the electorate during a political contest, no matter how seemingly benign, will be tolerated.
Indeed, democracy will never be one without free speech and expression. After all, the sovereign people ought to have a say on matters affecting the State, especially in the context of an election. It is amazing how one oversized tarpaulin can stir the sensibilities of people and start a debate on the entitlement to freedom of speech and expression. But perhaps when the tarpaulin, along with other media by which ideas and advocacies are conveyed, have served their purpose, a more mature and better informed electorate will emerge, one not so much influenced by dimensional presentations but by the substance of the idea that is sought to be conveyed. That, in true essence, is the bedrock upon which free speech and expression rest.
Genie Celini D. Nuevo is an Associate of the Angara Abello Concepcion Regala & Cruz Law Offices, Davao Branch.
gdnuevo@accralaw.com
[082]224-0996
source: Businessworld
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