There has never been any shortage of people within the Commission on Elections saying, “maybe it’s time we do something about negative ads.” In a world that has somehow decided that it is better to be inoffensive than true to the ideal of freedom of speech, this sentiment easily resonates with many people. And in a political environment where every possible point just has to be scored, it is even easier to turn to the COMELEC and demand that something be done.
But then, in GMA Network v. COMELEC (2 September 2014; where, interestingly enough, Senator Alan Peter Cayetano was entered as an intervenor against the COMELEC), the Supreme Court said: “There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce election laws but it cannot exercise its powers without limitations – or reasonable basis. It could not simply adopt measures or regulations just because it feels that it is the right thing to do, in so far as it might be concerned.”
Otherwise stated, before the COMELEC can do anything about the sentiment of needing to do something about negative ads, existing laws have to be taken into consideration. So what does the law say?
Batas Pambansa Blg 881 – the Omnibus Election Code – says this:
From this – more specifically from Section 79(b) – we learn that: Campaigns can be designed to “promote the election or defeat of a particular candidate.” In other words, practically anything that is meant to get a candidate to win or lose can be considered a campaign and, subject to certain limitations, are allowed by law.
This now brings up the question, what are the requirements for propaganda to be considered legit? Again, the law – this time Republic Act 9006, or the Fair Elections Act – provides the answer:
Notice that the law again speaks of election propaganda as being “for or against” a candidate; positive or negative. Notice also that for these ads to be legal, they have to accompanied by legal notices identifying who the ads was for (the last sentence of the first paragraph); legal notices that, if the ad was given for free, who the donor was (Section 4.2); and that there needs to be a written acceptance of the donation (Section 4.3).
Most importantly, note that the law speaks in general terms, without specifying the degree (for lack of a better word) to which an ad can be positive, i.e., designed to make someone win, or negative, i.e., designed to make someone lose. Put in another way, the law doesn’t seem to care what’s IN the ad. The law can therefore be said to be content neutral.
“Doing something about negative ads,” therefore, boils down to the COMELEC having to introduce content based regulation into a subject matter that existing law only regulates as to time (how much time for tv ads is allowed for candidates), place (via broadcast), and manner (the requirement for legal notices). Can the COMELEC even do that? Quite obviously, not.
Not everyone agrees, of course.
Today, this “citation” was raised.
With the helpful underscoring, no less.
The argument of the red line, obviously, is that negative ads aren’t allowed. Look closely enough, however, and it is clear that the underscoring actually refers to both positive and negative ads. Even taking this at face value, therefore, shows the absurdity of the position being taken. By this logic, even the most positive ads cannot be allowed!
But then again, we don’t have to take it at face value. In fact, just reading the entire paragraph will be enlightening. First of all, the paragraph refers to “rules and regulations” promulgated by the COMELEC; secondly, when those rules and regulations shall take effect (on the 7th day after publication), and what the rule is PRIOR to the effectivity of those rules and regulations.
The rule, in case you missed it, is this: “PRIOR to the effectivity of the said rules, no political advertisement or propaganda or political party shall be published or broadcast through mass media.” In other words, BAGO pumalo ang mga panuntunan, banal maglabas ng political ads, para o contra sa mga candidate. The keyword being PRIOR.
Even if we were to ignore Peñera v. COMELEC completely, this still wouldn’t apply because the rules and regulations have in fact entered into effectivity long before yesterday.
And then, there was this other “citation.”
Sad to say (well, no, not really sad), this is even more misguided than the last. This is still from RA 9006. Without any helpful underscoring, I would have to say that the one who posted this was referring to the 2nd paragraph which says that the COMELEC shall ensure that radio or television or cable television broadcasting entities shall not allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate, and so on.
As with the last “citation,” taking this at face value yields the ridiculous conclusion that both positive (those which favor) and negative (those which oppose) programs are prohibited. Taking into consideration that the person who posted this is arguing on behalf of someone who has, in fact, a whole lot of ads devoted to extolling his virtues, I imagine a blanket prohibition – almost equivalent to a total ban on broadcast political materials – was not his intention.
But even beyond that, note that the prohibition actually applies not to broadcast advertisements but to “programs.” This provision calls to mind that case filed against a public service program host who used his program to promote the candidacy of one person, while heaping derision on another. Like I said, reliance on this provision is sadly misguided.
Let’s summarise:
1. The rules allow both positive and negative ads.
2. The COMELEC is empowered to regulate only time, place, and manner, NOT content.
3. Regulating or prohibiting negative ads is tantamount to content based regulation which – apart from going against the principle of free speech – is not within COMELEC’s power.
4. The prohibitions cited by concerned netizens referred to election propaganda put out BEFORE the rules on campaigns have entered into effect, and to programs (not ads) which show manifest favor or opposition to a candidate.
Now having said all that, it should also be remembered that none of this says negative ads shouldn’t be regulated, or that there was nothing wrong with any particular ad. Far from it. All any of this says is that the remedy lies somewhere else.
Congress, perhaps? To finally enact laws that prohibit negative ads. Or, if the objection is not to the negativity of the ad per se, but to the morality of the ad or the use of children, then perhaps recourse ought to be had through such agencies as deal with those things.