Did bishop of Bacolod emasculate Comelec?

The decision on the Diocese of Bacolod is the Supreme Court’s most convoluted exaltation of free speech. Few realize how it undercuts the Commission on Elections.

Shortly before the 2013 elections, a bishop installed two 6×10-foot tarpaulins on the facade of Bacolod’s San Sebastian Cathedral. The first said, “Ibasura RH Law (Junk the Reproductive Health Law).” The second bore the heading “Conscience Vote” and two lists of candidates, “[Anti-RH] Team Buhay” (with a check mark) and “[Pro-RH] Team Patay” (with an “x”). These lists included candidates only, not legislators who voted for or against the RH Law but were not running in 2013. A Comelec officer asked the bishop to remove the tarpaulins, citing a Comelec rule limiting posters to 2×3 feet, or be charged with an election offense.

How would you resolve this case? You might rule that the Comelec may validly level the playing field with a poster size rule. Or you might rule that the Comelec cannot restrict how one uses one’s own property for free speech.

Eleven of 14 justices upheld the bishop. Marvic Leonen wrote the decision for eight justices. Very curiously, Antonio Carpio wrote a separate 6-page concurring opinion representing two justices, while Estela Perlas-Bernabe wrote a separate 4-page concurring opinion. Arturo Brion wrote for the three dissenters.

To appreciate the decision’s nuances, we need to go into technical free speech doctrine. One must first determine whether a rule restricting speech is “content-based” or “content-neutral.” A content-based rule blocks speech based on its content (“You may not criticize the President”) and is much harder to justify. A content-neutral rule blocks speech based on time, manner or place but not content (“No rallying without a permit”).

This is not abstract legalese; these rules determine whether Carlos Celdran’s jail term is valid, for example. Celdran was convicted of “offending religious feelings,” a crime committed if one performed acts notoriously offensive to the feelings of the faithful inside a place of worship. Celdran’s critics argue that this definition is content-neutral and focused on place, and stress that he protested inside the Manila Cathedral. Celdran’s defenders argue that this definition is content-based because one cannot establish “notoriously offensive” without analyzing his speech’s content, and that a crime defined by offensiveness is impossible to justify under free speech.

Returning to the bishop, the decision surprisingly classified the Comelec’s poster size rule as content-based, arguing that it only affects election-related but not commercial posters. Further, it argued that a maximum size limits the words in a poster. Carpio, Perlas-Bernabe and Brion all sharply protested that a poster size rule is content-neutral. (I would agree as an illiterate official can enforce it.) This counterintuitive ruling confuses how one may draft future Comelec regulations.

Beyond this crucial technical rule, the decision argued that the “Team Patay” tarpaulins are not “election propaganda” that can be regulated by the Comelec, but social advocacy on the RH Law that only incidentally advocated voting or not voting for certain candidates. Further, the decision argued that the Comelec may only regulate election material connected to candidates. Carpio and Brion emphatically protested that there is no such limitation on the Comelec’s powers and that allowing unrestricted “advocacy” by private persons allegedly unconnected to candidates opens a wide backdoor to abuse. Indeed, the decision seems naive because the tarpaulins explicitly asked viewers to vote or not to vote for explicitly named candidates. And as Brion stressed, how can one separate candidates from their key advocacies?

Finally, the decision argued that government may not restrict the bishop’s use of church property as political billboards. Brion dissented that the decision implied that the Comelec may only regulate election material in public places, yet government validly imposes regulations on private property such as zoning and building restrictions.

The long decision had other nuances. It ruled that Article IX-C, Section 4 of the Constitution only applies to media franchise holders and candidates, and this cannot be invoked against the bishop. However, this is also the basis for the Comelec’s 2013 “right to reply” rules, and the decision unwittingly nullified these for the reasons I previously raised (“To Grace Poe: Right to reply already law,” 10/29/14).

Brion questioned why the case was accepted given that the bishop challenged the act of a lower Comelec official without first protesting to the commissioners. The high court reviews acts of the actual commission, not its subordinates. It is an uncharacteristic position for Leonen, who meticulously scrutinized such jurisdictional rules in every previous major case. It is frustrating how none of these was publicly debated because the high court announced that the decision upheld the bishop’s free speech, but released the actual decision and its critical nuances only weeks later.

Law involves competing values, and often demands balancing a right versus a right as much as it does a right versus a wrong. The Diocese of Bacolod case involves not the classic helpless individual standing firm against all of society, but a powerful institution, the Catholic Church, standing against a Comelec that has struggled to level the electoral playing field since its creation. Congratulations to La Salle Bacolod’s young, idealistic Dean Ralph Sarmiento for the bishop’s sweeping win, but this is precisely the case where one must pontificate cautiously.

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