Loida Lewis Vs Comelec PDF

EN BANC
[G.R. No. 223705. August 14, 2019.]
LOIDA NICOLAS-LEWIS , petitioner, vs . COMMISSION ON ELECTIONS ,

respondent.
DECISION
J.C. REYES, JR. , J : p
On grounds of violation of the freedom of speech, of expression, and of

assembly; denial of substantive due process; violation of the equal protection clause;
and violation of the territoriality principle in criminal cases, Loida Nicolas-Lewis
(petitioner) seeks to declare as unconstitutional Section 36.8 of Republic Act (R.A.) No.
9189, as amended by R.A. No. 10590 1 and Section 74 (II) (8) of the Commission on
Elections (COMELEC) Resolution No. 10035, 2 which prohibit the engagement of any
person in partisan political activities abroad during the 30-day overseas voting period.
Relevant Antecedents
On February 13, 2003, R.A. No. 9189, entitled "An Act Providing for a System of
Overseas Absentee Voting by Quali ed Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for other Purposes," also known as "The Overseas
Absentee Voting Act of 2003," was enacted. Its purpose is to ensure equal opportunity
to all quali ed Filipino citizens abroad to exercise the fundamental right of suffrage
pursuant to Section 2, Article V 3 of the 1987 Constitution.
In 2012, certain amendments to R.A. No. 9189 were proposed both by the House
of Representatives and the Senate through House Bill No. 6542 and Senate Bill No.
3312, respectively.
Consequently, R.A. No. 9189 was amended by R.A. No. 10590 or "The Overseas
Voting Act of 2013."
Of relevance in the instant petition is Section 37 of R.A. No. 10590 which
renumbered Section 24 of R.A. No. 9189 and amended the same as follows:
SEC. 36. Prohibited Acts. — In addition to the prohibited acts
provided by law, it shall be unlawful:
xxx xxx xxx
36.8. For any person to engage in partisan political activity abroad during
the thirty (30)-day overseas voting period;
xxx xxx xxx
The provision of existing laws to the contrary notwithstanding, and with due
regard to the Principle of Double Criminality, the prohibited acts described in this
section are electoral offenses and shall be punishable in the Philippines. CAIHTE
On January 13, 2016, the COMELEC promulgated Resolution No. 10035 entitled
"General Instructions for the Special Board of Election Inspectors and Special Ballot
Reception and Custody Group in the Conduct of Manual Voting and Counting of Votes
CD Technologies Asia, Inc. 2020 cdasiaonline.com
under Republic Act No. 9189, x x x as amended by Republic Act No. 10590 for Purposes
of the May 9, 2016 National and Local Elections." Section 74 (II) (8), Article XVII thereof
provides for the same prohibition above-cited, viz.:
Sec. 74. Election offenses/prohibited acts. —
xxx xxx xxx
II. Under R.A. 9189 "Overseas Absentee Voting Act of 2003," as amended
xxx xxx xxx
8. For any person to engage in partisan political activity abroad
during the thirty (30)-day overseas voting period.
xxx xxx xxx
The provision of existing laws to the contrary notwithstanding, and with
due regard to the Principle of Double Criminality, the prohibited acts described in
this section are electoral offenses and shall be punishable in the Philippines.
xxx xxx xxx
Petitioner possesses dual citizenship (Filipino and American), whose right to
vote under R.A. No. 9189, as amended, or the absentee voting system, was upheld by
the Court En Banc in the 2006 case of Nicolas-Lewis v. COMELEC. 4
Petitioner alleges, albeit notably sans support, that she, "together with thousands
of Filipinos all over the world," were prohibited by different Philippine consulates from
conducting information campaigns, rallies, and outreach programs in support of their
respective candidates, especially for the positions of President and Vice-President for
the 2016 Elections, pursuant to the above-cited provisions. 5
Hence, this petition.
Considering the urgency of the matter as the May 2016 presidential and vice-
presidential elections were forthcoming when the petition was led, the Court, in its
April 19, 2016 Resolution 6 partially granted the application for temporary restraining
order (TRO), enjoining the COMELEC, its deputies and other related instrumentalities
from implementing the questioned provisions, except within Philippine Embassies,
Consulates, and other Posts where overseas voters may exercise their right to vote
pursuant to the Overseas Voting System, where partisan political activities shall still be
prohibited until further orders from the Court.
Issues
Notably, the questioned provision in COMELEC Resolution No. 10035 merely
echoed that of Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590. Also, said
Resolution was issued for purposes of the May 9, 2016 Elections only, which already
came to pass.
Thus, ultimately, this Court is called upon to resolve the issue on whether Section
36.8 of R.A. No. 9189, as amended by R.A. No. 10590, is unconstitutional for violating
the right to speech, expression, assembly, and suffrage; for denial of substantive due
process and equal protection of laws; and for violating the territoriality principle of our
criminal law.
The Court's Ruling
The Court is once again confronted with the task of harmonizing fundamental
interests in our constitutional and democratic society. On one hand are the
constitutionally-guaranteed rights, speci cally, the rights to free speech, expression,
assembly, suffrage, due process and equal protection of laws, which this Court is
mandated to protect. On the other is the State action or its constitutionally-bounden
duty to preserve the sanctity and the integrity of the electoral process, which the Court
is mandated to uphold. It is imperative, thus, to cast a legally-sound and pragmatic
balance between these paramount interests.
Essentially, petitioner urges the Court to review the questioned provision,
premised on the claim that "she and all the Filipino voters all over the world" have
experienced its detrimental effect when she, "together with thousands of similarly
situated Filipinos all over the world," were allegedly prohibited by different Philippine
consulates from conducting information campaigns, rallies, and outreach programs in
support of their respective candidates in the 2016 Elections.
The O ce of the Solicitor General (OSG), however, argues that these allegations
do not only lack veracity, but also failed to demonstrate how petitioner, or overseas
Filipino voters for that matter, were left to sustain or are in the immediate danger to
sustain direct injury as a result of the enforcement of the assailed provision. Signi cant
details such as the true nature of the activities allegedly conducted by the petitioner
and the alleged thousands of overseas Filipino voters all over the world and the
circumstances that led to the alleged prohibition made by the Philippine consulates, if
at all, were not asserted which could have clearly demonstrated the claimed
detrimental effect caused by the operation of the questioned law to her and all the
Filipino voters abroad. Hence, the OSG posits that petitioner failed to establish that this
case involves a justiciable controversy to warrant the Court's review of a co-equal
branch's act. DETACa
Contrary to the OSG's position, the instant petition involves an actual case or
justiciable controversy, warranting the Court's exercise of the power of judicial review.
Indeed, whether under the traditional or the expanded setting, the power of
judicial review is subject to certain limitations, one of which is that there must be an
actual case or controversy calling for the exercise of judicial power. 7 In the recent case
o f Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City , 8 the Court
expounded on this requisite, viz.:
x x x [A]n actual case or controversy is one which ["]involves a con ict of
legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or
dispute.["] In other words, "there must be a contrariety of legal rights that
can be interpreted and enforced on the basis of existing law and
jurisprudence. " According to recent jurisprudence, in the Court's exercise of its
expanded jurisdiction under the 1987 Constitution, this requirement is simpli ed
"by merely requiring a prima facie showing of grave abuse of
discretion in the assailed governmental act."
Corollary to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. For
a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must
allege the existence of an immediate or threatened injury to himself
as a result of the challenged action .
Relatedly, in Ifurung v. Morales, 9 the Court explained that:
[G]rave abuse of discretion arises when a lower court or tribunal patently
violates the Constitution, the law, or existing jurisprudence. We have already
ruled that petitions for certiorari and prohibition led before the Court "are the
remedies by which grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the [g]overnment may
be determined under the Constitution," and explained that "[w]ith respect to the
Court, x x x the remedies of certiorari and prohibition are necessarily broader in
scope and reach, and the writ of certiorari or prohibition may be issued to
correct errors of jurisdiction committed not only by a tribunal, corporation, board
or o cer exercising judicial, quasi-judicial or ministerial functions, but also to
set right, undo, and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or
instrumentality of the [g]overnment, even if the latter does not
exercise, judicial, quasi-judicial or ministerial functions ."
Thus, "[w]here an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right, but in fact the duty of the
judiciary to settle the dispute. The question, thus, posed is judicial rather than political.
The duty to adjudicate remains to assure that the supremacy of the Constitution is
upheld." 1 0
Guided by the foregoing principles, the Court nds that there exists an actual
justiciable controversy in this case given the "evident clash of the parties' legal claims"
1 1 as to whether the questioned provision infringe upon the constitutionally-guaranteed
freedom of expression of the petitioner, as well as all the Filipinos overseas.
Petitioner's allegations and arguments presented a prima facie case of grave abuse of
discretion which necessarily obliges the Court to take cognizance of the case and
resolve the paramount constitutional issue raised. The case is likewise ripe for
adjudication considering that the questioned provision continues to be in effect until
the Court issued the TRO above-cited, enjoining its implementation. While it may be true
that petitioner failed to particularly allege the details of her claimed direct injury, the
petition has clearly and su ciently alleged the existence of an immediate or threatened
injury sustained and being sustained by her, as well as all the overseas Filipinos, on their
exercise of free speech by the continuing implementation of the challenged provision. A
judicial review of the case presented is, thus, undeniably warranted.
Besides, in Gonzales v. COMELEC, 1 2 the Court ruled that when the basic liberties
of free speech, freedom of assembly and freedom of association are invoked to nullify
a statute designed to maintain the purity and integrity of the electoral process by
Congress calling a halt to the undesirable practice of prolonged political campaign or
partisan political activities, the question confronting the Court is one of transcendental
significance, warranting this Court's exercise of its power of judicial review. 1 3
Verily, in discharging its solemn duty as the nal arbiter of constitutional issues,
the Court shall not shirk from its obligation to determine novel issues, or issues of rst
impression, with far-reaching implications. 1 4
That being so, this Court shall now endeavor to settle the constitutional issue
raised in the petition promptly and definitely.
Petitioner assails the constitutionality of Section 36.8 of R.A. No. 9189, as
amended by R.A. No. 10590, which prohibits "any person to engage in partisan political
activity abroad during the 30-day overseas voting period." A violation of this provision
entails penal and administrative sanctions.
Section 79 (b) of the Omnibus Election Code de nes partisan political activity as
follows: aDSIHc
Section 79. Definitions. — x x x

xxx xxx xxx
(b) The term "election campaign" or "partisan political activity" refers
to an act designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs,
committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or against a
candidate;
(2) Holding political caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda
for or against a candidate;
(3) Making speeches, announcements or
commentaries, or holding interviews for or against the election of
any candidate for public office;
(4) Publishing or distributing campaign literature or
materials designed to support or oppose the election of any
candidate; or
(5) Directly or indirectly soliciting votes, pledges or
support for or against a candidate.
The foregoing enumerated acts if performed for the
purpose of enhancing the chances of aspirants for nomination for
candidacy to a public o ce by a political party, aggroupment, or
coalition of parties shall not be considered as election campaign
or partisan election activity.
Public expressions or opinions or discussions of probable
issues in a forthcoming election or on attributes of or criticisms
against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as
part of any election campaign or partisan political activity
contemplated under this Article.
Basically, on its face, the questioned provision prohibits the act of campaigning
for or against any candidate during the voting period abroad.
In the main, petitioner argues that the prohibition is a violation of Article III,
Section 4 of the 1987 Constitution. Petitioner explains that the prohibited partisan
political activities as de ned under the law are acts of exercising free speech,
expression, and assembly. Corollary, these activities are necessary for the voters to be
informed of the character, platforms, and agenda of the candidates to the end of having
an educated decision on who to vote for. As such, it is petitioner's position that the
prohibition on partisan political activities is a clear curtailment of the most cherished
and highly-esteemed right to free speech, expression, and assembly, as well as the right
to suffrage.
Speci cally, petitioner argues that the questioned prohibition constitutes a
content-based prior restraint on the overseas Filipino voters' right to express their
political inclinations, views and opinions on the candidates, hence, must be given the
presumption of unconstitutionality and subjected to the strictest scrutiny, i.e.,
overcoming the clear and present danger rule.
We resolve.
Freedom of expression has gained recognition as a fundamental principle of
every democratic government, and given a preferred right that stands on a higher level
than substantive economic freedom or other liberties. 1 5 In no equivocal terms did the
fundamental law of the land prohibit the abridgement of the freedom of expression.
Section 4, Article II of the 1987 Constitution expressly states:
No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
A fundamental part of this cherished freedom is the right to participate in
electoral processes, which includes not only the right to vote, but also the right to
express one's preference for a candidate or the right to in uence others to vote or
otherwise not vote for a particular candidate. This Court has always recognized that
these expressions are basic and fundamental rights in a democratic polity 1 6 as they
are means to assure individual self-ful llment, to attain the truth, to secure participation
by the people in social and political decision-making, and to maintain the balance
between stability and change. 1 7 ETHIDa
Rightfully so, since time immemorial, "[i]t has been our constant holding that this
preferred freedom [of expression] calls all the more for the utmost respect when what
may be curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage." 1 8 In the recent case of 1-United Transport Koalisyon (1-
UTAK) v. COMELEC, 1 9 the Court En Banc pronounced that any governmental restriction
on the right to convince others to vote for or against a candidate — a protected
expression — carries with it a heavy presumption of invalidity.
To be sure, this rather potent deviation from our conventional adherence to the
presumption of constitutionality enjoyed by legislative acts is not without basis.
Nothing is more settled than that any law or regulation must not run counter to the
Constitution as it is the basic law to which all laws must conform. Thus, while
admittedly, these rights, no matter how sacrosanct, are not absolute and may be
regulated like any other right, in every case where a limitation is placed on their exercise,
the judiciary is called to examine the effects of the challenged governmental action 2 0
considering that our Constitution emphatically mandates that no law shall be passed
abridging free speech and expression. Simply put, a law or statute regulating or
restricting free speech and expression is an outright departure from the express
mandate of the Constitution against the enactment of laws abridging free speech and
expression, warranting, thus, the presumption against its validity.
In this regard, therefore, a law or regulation, even if it purports to advance a
legitimate governmental interest, may not be permitted to run roughshod over the
cherished rights of the people enshrined in the Constitution. 2 1 It is only when the
challenged restriction survives the appropriate test will the presumption against its
validity be overthrown.
The question now is what measure of judicial scrutiny should be used to gauge
the challenged provision.
Over the years, guided by notable historical circumstances in our nation and
related American constitutional law doctrines on the First Amendment, certain tests of
judicial scrutiny were developed to determine the validity or invalidity of free speech
restrictions in our jurisdiction.
Foremost, a facial review of a law or statute encroaching upon the freedom of
speech on the ground of overbreadth or vagueness is acceptable in our jurisdiction.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally
subject to state regulation, may not be achieved by means that unnecessarily sweep its
subject broadly, thereby invading the area of protected freedoms. 2 2 Put differently, an
overbroad law or statute needlessly restricts even constitutionally-protected rights. On
the other hand, a law or statute suffers from vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application. 2 3
It is noteworthy, however, that facial invalidation of laws is generally disfavored
as it results to entirely striking down the challenged law or statute on the ground that
they may be applied to parties not before the Court whose activities are constitutionally
protected. It disregards the case and controversy requirement of the Constitution in
judicial review, and permits decisions to be made without concrete factual settings and
in sterile abstract contexts, 2 4 deviating, thus, from the traditional rules governing
constitutional adjudication. Hence, an on-its-face invalidation of the law has
consistently been considered as a "manifestly strong medicine" to be used "sparingly
and only as a last resort." 2 5
The allowance of a review of a law or statute on its face in free speech cases is
justi ed, however, by the aim to avert the "chilling effect" on protected speech, the
exercise of which should not at all times be abridged. 2 6 The Court elucidated:
The theory is that "[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes
in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing
attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow speci city . " 2 7 (Emphasis
supplied, citation omitted)
Restraints on freedom of expression are also evaluated by either or a
combination of the following theoretical tests, to wit: (a) the dangerous tendency
doctrine, 2 8 which were used in early Philippine case laws; (b) the clear and present
danger rule, 2 9 which was generally adhered to in more recent cases; and (c) the
balancing of interests test, 3 0 which was also recognized in our jurisprudence.
In the landmark case of Chavez v. Gonzales , 3 1 the Court laid down a more
detailed approach in dealing with free speech regulations. Its approach was premised
on the rational consideration that "the determination x x x of whether there is an
impermissible restraint on the freedom of speech has always been based on the
circumstances of each case, including the nature of the restraint." The Court discussed:
cSEDTC
Given that deeply ensconced in our fundamental law is the hostility

against all prior restraints on speech, and any act that restrains speech is
presumed invalid, and "any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed brows," it is
important to stress that not all prior restraints on speech are invalid. Certain
previous restraints may be permitted by the Constitution, but determined only
upon a careful evaluation of the challenged act as against the appropriate test
by which it should be measured against.
Hence, it is not enough to determine whether the challenged act
constitutes some form of restraint on the freedom of speech. A
distinction has to be made whether the restraint is (1) a content-
neutral regulation , i.e., merely concerned with the incidents of speech, or one
that merely controls the time, place, or manner, and under well[-] de ned
standards; or (2) a content-based restraint or censorship , i.e., the
restriction is based on the subject matter of the utterance or speech. The cast of
the restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral
regulation, only a substantial governmental interest is required for its
validity. Because regulations of this type are not designed to suppress
any particular message, they are not subject to the strictest form of
judicial scrutiny but an intermediate approach — somewhere between
the mere rationality that is required of any other law and the
compelling interest standard applied to content-based restrictions . The
test is called intermediate because the Court will not merely rubberstamp the
validity of a law but also require that the restrictions be narrowly-tailored to
promote an important or signi cant governmental interest that is unrelated to
the suppression of expression. The intermediate approach has been
formulated in this manner :
A governmental regulation is su ciently justi ed if
it is within the constitutional power of the Government; if
it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is
no greater than is essential to the furtherance of that
interest.
On the other hand, a governmental action that restricts freedom of
speech or of the press based on content is given the strictest scrutiny in light of
its inherent and invasive impact. Only when the challenged act has overcome
the clear and present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-
based restraint will be struck down.
With respect to content-based restrictions, the government must also
show the type of harm the speech sought to be restrained would bring about —
especially the gravity and the imminence of the threatened harm — otherwise
the prior restraint will be invalid. Prior restraint on speech based on its content
cannot be justi ed by hypothetical fears, "but only by showing a substantive
and imminent evil that has taken the life of a reality already on ground." As
formulated, "the question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right
to prevent. It is a question of proximity and degree."
The regulation which restricts the speech content must also serve an
important or substantial government interest, which is unrelated to the
suppression of free expression.
Also, the incidental restriction on speech must be no greater than what is
essential to the furtherance of that interest. A restriction that is so broad that it
encompasses more than what is required to satisfy the governmental interest
will be invalidated. The regulation, therefore, must be reasonable and narrowly
drawn to fit the regulatory purpose, with the least restrictive means undertaken.
Thus, when the prior restraint partakes of a content-neutral regulation, it
is subjected to an intermediate review. A content-based regulation, however,
bears a heavy presumption of invalidity and is measured against the clear and
present danger rule. The latter will pass constitutional muster only if justi ed by
a compelling reason, and the restrictions imposed are neither overbroad nor
vague. (Emphasis supplied, citations omitted) 3 2 SDAaTC
The paramount consideration in the analysis of the challenged provision,

therefore, is the nature of the restraint on protected speech, whether it is content-based
or otherwise, content-neutral. As explained in Chavez, a content-based regulation is
evaluated using the clear and present danger rule, while courts will subject content-
neutral restraints to intermediate scrutiny.
Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590, is an
impermissible content-neutral regulation for being overbroad, violating, thus,
the free speech clause under Section 4, Article III of the 1987 Constitution.
The questioned provision is clearly a restraint on one's exercise of right to
campaign or disseminate campaign-related information. Prior restraint refers to o cial
governmental restrictions on the press or other forms of expression in advance of
actual publication or dissemination. 3 3 Undoubtedly, the prohibition under the
questioned legislative act restrains speech or expression, in the form of engagement in
partisan political activities, before they are spoken or made.
The restraint, however, partakes of a content-neutral regulation as it merely
involves a regulation of the incidents of the expression, speci cally the time and place
to exercise the same. It does not, in any manner, affect or target the actual content of
the message. It is not concerned with the words used, the perspective expressed, the
message relayed, or the speaker's views. More speci cally, the prohibition does not
seek to regulate the exercise of the right to campaign on the basis of the particular
message it conveys. It does not, in any manner, target the actual content of the
message. It is easily understandable that the restriction was not adopted because of
the government's disagreement with the message the subject speech or expression
relays. 3 4 There was no intention on the part of the government to make any distinction
based on the speaker's perspectives in the implementation of the regulation. 3 5 Simply
put, regardless of the content of the campaign message or the idea it seeks to convey,
whether it is for or, otherwise against a certain candidate, the prohibition was intended
to be applied during the voting period abroad.
The fact that the questioned regulation applies only to political speech or
election-related speech does not, by itself, make it a content-based regulation. It is too
obvious to state that every law or regulation would apply to a particular type of speech
such as commercial speech or political speech. It does not follow, however, that these
regulations affect or target the content of the speech or expression to easily and
sweepingly identify it as a content-based regulation. Instead, the particular law or
regulation must be judiciously examined on what it actually intends to regulate to
properly determine whether it amounts to a content-neutral or content-based regulation
as contemplated under our jurisprudential laws. To rule otherwise would result to the
absurd interpretation that every law or regulation relating to a particular speech is a
content-based regulation. Such perspective would then unjusti ably disregard the well-
established jurisprudential distinction between content-neutral and content-based
regulations.
To be sure, not all regulations against political speech are content-based. Several
regulations on this type of speech had been declared content-neutral by this Court in
previous cases. In National Press Club v. COMELEC , 3 6 the Court ruled that while the
questioned provision therein — preventing the sale or donation of print space or airtime
for political advertisement during the campaign period — of course, limits the right of
speech and access to mass media, it does not authorize intervention with the content
of the political advertisements, which every candidate is free to present within their
respective COMELEC time and space. In the case of 1-UTAK 3 7 above-cited, the
questioned prohibition on posting election campaign materials in public utility vehicles
was classi ed as a content-neutral regulation by the Court, albeit declared an invalid
one for not passing the intermediate test.
Being a content-neutral regulation, we, therefore, measure the same against the
intermediate test, viz.: (1) the regulation is within the constitutional power of the
government; (2) it furthers an important or substantial governmental interest; (3) such
governmental interest is unrelated to the suppression of the free expression; and (4)
the incidental restriction on the alleged freedom of expression is no greater than what
is essential to the furtherance of the governmental interest. 3 8
Our point of inquiry focuses on the fourth criterion in the said test, i.e., that the
regulation should be no greater than what is essential to the furtherance of
the governmental interest .
The failure to meet the fourth criterion is fatal to the regulation's validity as even
if it is within the Constitutional power of the government agency or instrumentality
concerned and it furthers an important or substantial governmental interest which is
unrelated to the suppression of speech, the regulation shall still be invalidated if the
restriction on freedom of expression is greater than what is necessary to achieve the
invoked governmental purpose. 3 9
In the judicial review of laws or statutes, especially those that impose a
restriction on the exercise of protected expression, it is important that we look not only
at the legislative intent or motive in imposing the restriction, but more so at the effects
of such restriction when implemented. The restriction must not be broad and should
only be narrowly-tailored to achieve the purpose. It must be demonstrable. It must
allow alternative avenues for the actor to make speech. 4 0 acEHCD
As stated, the prohibition is aimed at ensuring the conduct of honest and orderly
elections to uphold the credibility of the ballots. Indeed, these are necessary and
commendable goals of any democratic society. However, no matter how noble these
aims may be, they cannot be attained by sacri cing the fundamental right of expression
when such aim can be more narrowly pursued by not encroaching on protected speech
merely because of the apprehension that such speech creates the danger of the evils
sought to be prevented. 4 1
In this case, the challenged provision's sweeping and absolute prohibition
against all forms of expression considered as partisan political activities without any
quali cation is more than what is essential to the furtherance of the contemplated
governmental interest. On its face, the challenged law provides for an absolute and
substantial suppression of speech as it leaves no ample alternative means for one to
freely exercise his or her fundamental right to participate in partisan political activities.
Consider:
The use of the unquali ed term "abroad" would bring any intelligible reader to
the conclusion that the prohibition was intended to also be extraterritorial in
application. Generalia verba sunt generaliter inteligencia. 4 2 General words are
understood in a general sense. The basic canon of statutory interpretation is that the
word used in the law must be given its ordinary meaning, unless a contrary intent is
manifest from the law itself. 4 3 Thus, since the Congress did not qualify the word
"abroad" to any particular location, it should then be understood to include any and all
location abroad. Regardless, therefore, of whether the exercise of the protected
expression is undertaken within or without our jurisdiction, it is made punishable under
the challenged provision couched in pervasive terms.
To reiterate, the perceived danger sought to be prevented by the restraint is the
purported risk of compromising the integrity and order of our elections. Sensibly, such
risk may occur only within premises where voting is conducted, i.e., in embassies,
consulates, and other foreign service establishments. There is, therefore, no rhyme or
reason to impose a limitation on the protected right to participate in partisan political
activities exercised beyond said places.
While it may be argued that the Congress could not be presumed to have
enacted a ridiculous rule that transgresses the elementary principle of territoriality in
penalizing offenses, however, the general language of the law itself contradicts such
argument.
For the same reason, we cannot accept the OSG's argument that the prohibition
was intended to apply to candidates only, whose exercise of the right to campaign may
be regulated as to time, place, and manner, citing the case of The Diocese of Bacolod v.
COMELEC. 4 4 Again, the overbroad language of the questioned provision, i.e., "any
person" is prohibited to engage in any partisan political activity within the voting period
abroad, betrays such argument. The general term "any person" should be understood to
mean "any person" in its general sense as it was not clearly intended to be restricted to
mean "candidates only."
It may not be amiss to point out, at this juncture, that a facial invalidation of the
questioned statute is warranted to counter the "chilling effect" on protected speech
that comes from its overbreadth as any person may simply restrain himself from
speaking or engaging in any partisan political activity anywhere in order to avoid being
charged of an electoral offense. Indeed, an overbroad law that "chills one into silence"
should be invalidated on its face.
Neither was there any provision in the Implementing Rules and Regulations (IRR)
of the challenged law which clearly quali es the application of the questioned
prohibition within our jurisdiction and to candidates only. COMELEC Resolution No.
9843 4 5 or the IRR of R.A. No. 9189, as amended, which should have provided for well-
de ned and narrowly-tailored standards to guide our executive o cials on how to
implement the law, as well as to guide the public on how to comply with it, failed to do
so.
Article 63, Rule 15 of the said IRR similarly provides for an all-encompassing
provision, which reads:
RULE 15
CAMPAIGNING ABROAD
ART. 63. Regulation on campaigning abroad . — The use of
campaign materials, as well as the limits on campaign spending shall be
governed by the laws and regulations applicable in the Philippines and subject
to the limitations imposed by laws of the host country, if applicable.
Personal campaigning of candidates shall be subject to the laws of the
host country.
All forms of campaigning within the thirty (30)[-]day voting
period shall be prohibited . (Emphasis supplied) SDHTEC
What is more, while Section 64 thereof provides for speci c rules on

campaigning, it absolutely prohibits engagement in partisan political activities within
our jurisdiction (embassies, consulates, and other foreign service establishments), not
only during the voting period, but even during the campaign period, or simply during the
entire election period, viz.:
ART. 64. Specific rules on campaigning. — The following rules shall
apply during the campaign period, including the day of the election :
1) The "port courtesies" that embassies, consulates and other foreign
service establishments may extend to candidates shall not go beyond
welcoming them at the airport and providing them with brie ng materials about
the host country, and shall at all times be subject to the availability of the
personnel and funding for these activities.
2) The embassies, consulates and other foreign service
establishments shall continue to assist candidates engaged in o cial
Philippine government activities at the host country and in making the
representations with the host government.
3) Members of the Foreign Service Corps may attend public
social/civic/religious affairs where candidates may also be present, provided
that these o cers and employees do not take part in the solicitation of votes
and do not express public support for candidates.
4) While nothing in the Overseas Voting Act of 2003 as amended
shall be deemed to prohibit free discussion regarding politics or candidates for
public o ce, members of the Foreign Service Corps cannot publicly endorse
any candidate or political party nor take part in activities involving such public
endorsement.
5) No partisan political activity shall be allowed within the
premises of the embassy, consulate and other foreign service
establishment.
6) Government-sponsored or permitted information dissemination
activities shall be strictly non-partisan and cannot be conducted where a
candidate is present.
7) A Member of the Foreign Service Corps cannot be asked to directly
organize any meeting in behalf of a party or candidate, or assist in organizing or
act as liaison in organizing any such meeting. The prohibition shall apply to all
meetings — social, civic, religious meetings — where a candidate is present.
(Emphases supplied)
By banning partisan political activities or campaigning even during the campaign
period within embassies, consulates, and other foreign service establishments,
regardless of whether it applies only to candidates or whether the prohibition extends
to private persons, it goes beyond the objective of maintaining order during the voting
period and ensuring a credible election. To be sure, there can be no legally acceptable
justi cation, whether measured against the strictest scrutiny or the most lenient review,
to absolutely or unquali edly disallow one to campaign within our jurisdiction during
the campaign period.
Most certainly, thus, the challenged provision, whether on its face or read with its
IRR, constitutes a restriction on free speech that is greater than what is essential to the
furtherance of the governmental interest it aims to achieve. Section 36.8 of R.A. No.
9189 should be struck down for being overbroad as it does not provide for well-defined
standards, resulting to the ambiguity of its application, which produces a chilling effect
on the exercise of free speech and expression, and ultimately, resulting to the
unnecessary invasion of the area of protected freedoms. 4 6
For the foregoing reasons, this Court declares Section 36.8 of R.A. No. 9189, as
amended by R.A. No. 10590, unconstitutional for violating Section 4, Article III of the
1987 Constitution.
To be clear, this Court does not discount the fact that our leaders, chosen to
maneuver this nation's political ventures, are put in position through an electoral
process and as such, the government is constitutionally-mandated to ensure sound,
free, honest, peaceful, and credible elections, the same being indispensable in our
democratic society. In our goal to achieve such peaceful and credible democratic
process, however, we cannot likewise disparage the most exalted freedom of
expression, which is undeniably recognized as the bedrock of every democratic society,
it being an "indispensable condition of nearly every other form of freedom." 4 7 After all,
the conduct of elections is premised upon every democratic citizen's right to
participate in the conduct of public affairs and social and political decision-making
through the exercise of the freedom of expression. A restraint on such a vital
constitutional right through an overbroad statute cannot, thus, be countenanced and
given judicial imprimatur. As pronounced by the Court in the landmark case of Adiong v.
COMELEC: 4 8 AScHCD
When faced with border line situations where freedom to speak by a

candidate or party and freedom to know on the part of the electorate are
invoked against actions intended for maintaining clean and free elections, the
police, local o cials and COMELEC, should lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate
are not antagonistic. There can be no free and honest elections if in the efforts
to maintain them, the freedom to speak and the right to know are unduly
curtailed.
WHEREFORE , premises considered, the petition is GRANTED . The Court
declares Section 36.8 of Republic Act No. 9189, as amended by Republic Act No.
10590 as UNCONSTITUTIONAL . The temporary restraining order issued by this Court
on April 19, 2016 is hereby made PERMANENT and its application is accordingly
extended within Philippine Embassies, Consulates, and other posts where overseas
voters may exercise their right to vote pursuant to the Overseas Voting System.
SO ORDERED .
Bersamin, C.J., Carpio, Peralta, A.B. Reyes, Jr., Gesmundo, Hernando, Carandang,
Lazaro-Javier, Inting and Zalameda, JJ., concur.
Perlas-Bernabe, J., pls. see concurring opinion.
Leonen, J., see separate concurring opinion in the result.
Jardeleza, J., see separate concurring opinion.
Caguioa, J., I join the separate concurring opinion of J. Jardeleza.
Separate Opinions
PERLAS-BERNABE , J., concurring :
At the onset, I concur that Section 36.8 of Republic Act No. (RA) 9189, 1 as
amended by RA 10590 2 (Section 36.8), is a content-neutral regulation, for which the
intermediate scrutiny test should be made to apply. 3 The said provision reads:
Section 36. Prohibited Acts. — In addition to the prohibited acts
xxx xxx xxx
36.8. For any person to engage in partisan political activity
abroad during the thirty (30)-day overseas voting period [.] (Emphasis
supplied)
The distinction between content-neutral and content-based regulations is well-
settled in our jurisprudence. In Newsounds Broadcasting Network, Inc. v. Dy: 4
[J]urisprudence distinguishes between a content-neutral regulation, i.e., merely
concerned with the incidents of the speech, or one that merely controls
the time, place or manner, and under well-de ned standards ; and a
content-based restraint or censorship, i.e., the restriction is based on the
subject matter of the utterance or speech . 5 (Emphases supplied)
I n Ward v. Rock Against Racism , 6 the Supreme Court of the United States of
America stated that the principal inquiry in determining content-neutrality is whether the
government has adopted such regulation "because of disagreement with the
message it conveys ." 7
As I see it, Section 36.8 is primarily a regulation on the place (i.e.,
overseas/abroad) and time (i.e., during the thirty [30]-day overseas voting period) in
which political speech (particularly, those considered as "partisan political activity")
may be uttered under the standards the provision prescribes. The government's
purpose therefor is not so much on prohibiting "the message or idea of the expression"
8 per se, but rather on regulating "the time, place or manner of the expression." 9 As
such, Section 36.8 should only be classi ed as a content-neutral regulation, and not a
content-based one.
Being a content-neutral regulation, case law states that the intermediate
scrutiny test should be made to apply. In the Separate Concurring Opinion of Senior
Associate Justice Antonio T. Carpio in Chavez v. Gonzales, 1 0 he discussed:
If the prior restraint is not aimed at the message or idea of the
expression, it is content-neutral even if it burdens expression. A content-neutral
restraint is a restraint which regulates the time, place or manner of the
expression in public places without any restraint on the content of the
ex p ressi o n . Courts will subject content-neutral restraints to
intermediate scrutiny . AcICHD
An example of a content-neutral restraint is a permit specifying the date,

time and route of a rally passing through busy public streets. A content-neutral
prior restraint on protected expression which does not touch on the content of
the expression enjoys the presumption of validity and is thus enforceable
subject to appeal to the courts. Courts will uphold time, place or manner
restraints if they are content-neutral, narrowly tailored to serve a
signi cant government interest, and leave open ample alternative
channels of expression . 1 1 (Emphases and underscoring supplied)
Following the intermediate scrutiny approach, a content-neutral regulation is valid
if it meets these parameters: (1) it is within the constitutional power of the government;
(2) it furthers an important or substantial governmental interest; (3) the governmental
interest is unrelated to the suppression of free expression; and (4) the incidental
restriction on freedoms of speech, expression, and press is no greater than
what is essential to the furtherance of that interest . 1 2 In relation to the fourth
element, a restriction that is so broad that it encompasses more than what is required
to satisfy the governmental interest will be invalidated. In other words, the regulation
must be "narrowly tailored " to t the regulation's purpose. 1 3 In my view, Section 36.8
fails to satisfy this fourth parameter of the intermediate scrutiny approach, 1 4 and
hence, unconstitutional for the reasons explained below.
The purpose of the thirty (30)-day prohibition, based on respondent the
Commission on Elections' (COMELEC) Comment, 1 5 is "to ensure the holding of an
honest and orderly election that upholds the secrecy and sanctity of the ballot" or "to
maintain public order during election day." 1 6 Although the law's objective is clearly
constitutive of "an important or substantial governmental interest," Section 36.8's
sweeping restriction of all forms of speech considered as partisan political
activity abroad, without any quali cation whatsoever concerning the location
where such disorder may emanate , is more than essential to the furtherance of the
above-stated interest. To my mind, the perceived danger of election-related disorder
would only be extant when partisan political activity is allowed in places that fall within
the jurisdictional reach of our election laws, e.g., within the premises of the embassy,
consulate, and other foreign service establishment, and not beyond it. Stated otherwise,
the possibility of election-related discord discernibly arises only in places where our
election laws remain operative; conversely, where foreign election laws apply, the
possibility of election-related discord becomes a domestic concern of that country,
and not ours. Hence, by generally banning partisan political activity regardless
of the location where the political speech is speci cally uttered abroad ,
Section 36.8 goes over and beyond the objective of ensuring "the holding of an
honest and orderly [Philippine (not foreign)] election that upholds the secrecy and
sanctity of the ballot" and "to maintain public order during election day."ICHDca
While the COMELEC argues that the thirty (30)-day prohibition only applies in the
designated polling precincts 1 7 located in the above-stated places abroad, the general
language of the law itself betrays such argumentation. On its face, Section 36.8 broadly
prohibits "partisan political activity abroad during the thirty (30)-day overseas voting
period." 1 8 It is a rule in statutory construction that "a word of general signi cance in a
statute [— such as the word abroad —] is to be taken in its ordinary and comprehensive
sense, unless it is shown that the word is intended to be given a different or restricted
meaning," 1 9 which exception was not shown to obtain in the present case. Hence,
Section 36.8, as worded, foists a prohibition on partisan political activity (including
political speech) that generally applies in all places abroad.
In any case, even assuming that Section 36.8 was intended to restrictively apply
only within the premises of the embassy, consulate, and other foreign service
establishment as the COMELEC argues, 2 0 it is my view that this intent is not amply
re ected in the provision or even amply clari ed in its implementing rules. 2 1 Hence,
there is an ambiguity in the law's scope that ultimately has the effect of "chilling" the
free speech of our citizens residing overseas. In one case, it was observed that "where
vague statutes regulate behavior that is even close to constitutionally protected, courts
fear [that] a chilling effect will impinge on constitutional rights." 2 2 Verily, this
observation gains peculiar signi cance when it comes to regulations that affect
political speech. This is because, in The Diocese of Bacolod v. COMELEC , 2 3 the Court
has ruled that "[p]olitical speech enjoys preferred protection within our constitutional
order. x x x. '[I]f ever there is a hierarchy of protected expressions, political expression
would occupy the highest rank, and among different kinds of political expression, the
subject of fair and honest elections would be at the top.' 2 4 Sovereignty resides in the
people [and] [p]olitical speech is a direct exercise of the sovereignty." 2 5
In ne, Section 36.8 of RA 9189, as amended by RA 10590, is a content-neutral
regulation that, however, constitutes a restriction of free speech that is greater than
what is essential to the furtherance of the public interest it was intended to meet. Thus,
based on the above-discussed considerations, I vote to GRANT the petition and
DECLARE the subject provision as unconstitutional.
LEONEN , J., concurring :
I concur in the result. Nonetheless, I maintain that the provisions in question

should be stricken down as they are forms of prior restraint and content-based illicit
prohibition on the exercise of the primordial right to freedom of expression.
During elections, active deliberations prompted by the exercise of the freedoms
of speech, expression, and association of the electorate itself should remain
untrammeled. Our assurance of authentic democracy depends on safe spaces for
vigorous discussion. The provisions in question do the exact opposite. Curtailing
political speech during the elections is presumptively unconstitutional.
The very rst section in the Declaration of Principles and State Policies of the
Constitution states:
SECTION 1. The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from
them.
The electoral exercise is a signi cant forum for the sovereign. It is during this
time that the primordial and fundamental protection for the speech of every voter and
every citizen is most sacred. It is this type of political speech that lies at the core of the
guarantee of freedom of expression in Article III, Section 4 of the Constitution.
Therefore, any limitation on speech by the electorate must be justi ed on
legitimate grounds that are clear and indubitable and with means that are narrowly
tailored and only specifically calibrated to achieve those purposes.
Unfortunately, neither Section 36.8 1 of the Overseas Absentee Voting Act of
2013 nor Section 74 (II) (8) of Commission on Elections Resolution No. 10035 2 can be
justi ed as to its clear purpose or its narrowly circumscribed and calibrated means.
Both impose a prohibition that unduly sti es the votes of Filipinos abroad when we
should amplify their ideas, especially during elections, and even more so that a
multitude of them are overseas workers whose sacrifices are just as abundant.
Rather than a scalpel to precisely remove a speci c evil, these regulations
carelessly wield a wayward machete, striking negligent blows on the fundamental
rights of Filipinos living overseas. TCAScE
In my view, and after a careful examination of the case and a cautious review of
our jurisprudence, the 30-day prohibition on partisan political activities abroad violates
the fundamental right of freedom of expression.
Foremost, the assailed provisions are content-based regulations because they
speci cally target a kind of speech identi ed by its political element. While they seem
to merely regulate the time allowed in conducting partisan political activities, their
prohibition actually cuts deep into the expression's communicative impact and political
consequences. Thus, being content-based regulations, the strict scrutiny test must be
applied. They must bear a heavy presumption of unconstitutionality.
It is uncertain what clear, present, and substantial dangers are sought to be
curtailed in the different countries where the prohibition is applied. Respondent
Commission on Elections failed to discharge its burden of proving that the State has a
compelling interest in prohibiting partisan political activities abroad. It has not shown
why the prohibition is necessary to maintain public order abroad during the election
period. As they failed to overcome the presumption of the law's invalidity, the assailed
provisions must be stricken down.
Absent any compelling State interest, the constitutionally preferred status of free
speech must be upheld.
I
The Constitution guarantees protection to the exercise of free speech,
recognizing that free speech is fundamental in a democratic and republican State. 3
Freedom of expression is enshrined in Article III, Section 4 of the 1987 Constitution,
which states:
SECTION 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
This essential right springs from the constitutional touchstone that "[s]overeignty
resides in the people and all government authority emanates from them." 4 This is why
the extent of freedom of expression is broad. It protects almost all media of
communication, whether verbal, written, or through assembly. The protection conferred
is not limited to a eld of interest; it does not regard whether the cause is political or
social, or whether it is conventional or unorthodox. 5
To have a proper understanding and evaluation of this fundamental freedom, it is
necessary to know how and why freedom of expression occupied a core value in our
society, along with the influences that shaped the contours of our free speech clause.
Prior to being enacted in the present Bill of Rights, our free speech clause was
worded differently in the 1899 Malolos Constitution:
ARTICLE 20. Neither shall any Filipino be deprived:
1. Of the right to freely express his ideas or opinions, orally or in
writing, through the use of the press or other similar means.
The framing of the Malolos Constitution, while copied from the Spanish
Constitution, should be understood in view of the country's inadequate protection to
free speech during the Spanish rule. 6 At that time, there was an increasing demand for
reforms for free speech and free press. 7 Apparent from the text is that the protection
to free speech clause is tightly interweaved with a guaranteed free press, as the
printing press was the main medium through which free speech was exercised then.
Before the printing press, the societal outlook had been authoritarian, and the
medieval church had the central authority to determine what was true and false. 8
Slowly, after the dawn of the Renaissance and Reformation and the birth of the printing
press, the modern concept of freedom of thought and expression developed. 9
Particularly, in England, the monopoly of the king and the church on the societal truth
eroded with the advent of dissent through the new medium of print. 1 0
With the growing threat of the printing press, different forms of control on
expression and discourse were used, such as treason, seditious libel, and domination of
the press through state monopoly and licensing. 1 1 By the end of the 17th century, the
Bill of Rights was introduced, gradually relaxing control on the press. Nevertheless,
state control was still in place through subsidizing and taxation. 1 2
From the English common law, the concept of freedom of speech and the press
was inherited by the United States through its adoption of the First Amendment. 1 3 By
the dawn of the 20th century, disputes on free speech and the press mostly involved
the role of newspapers and periodicals, particularly "those of a different political
persuasion than the party in power — in acting as critics of the government." 1 4
The roots of our own free speech clause can be traced back to the U.S. First
Amendment. In 1900, U.S. President William McKinley introduced a differently worded
free speech clause through the Magna Carta of Philippine Liberty. Heavily in uenced by
the First Amendment, it read: "That no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and
petition the Government for a redress of grievances." 1 5 This was echoed in the organic
acts of the Philippine Bill of 1902 and the Jones Law of 1916. 1 6 With the increasing
desire for independence, the free exercise of speech and the press became
indispensable for our people. cTDaEH
The free speech clause eventually owed through our jurisprudence. In the 1922
case of United States v. Perfecto , 1 7 the right of the people to free exercise of speech
and of assembly has been acknowledged as fundamental in our democratic and
republican state:
The interest of civilized society and the maintenance of good government
demand a full and free discussion of all affairs of public interest. Complete
liberty to comment upon the administration of Government, as well as the
conduct of public men, is necessary for free speech. The people are not obliged,
under modern civilized governments, to speak of the conduct of their o cials,
their servants, in whispers or with bated breath.
The right to assemble and petition the Government, and to make requests
and demands upon public o cials, is a necessary consequence of republican
and democratic institutions, and the complement of the right of free speech. 1 8
(Citations omitted)
The right to free speech was accorded constitutional protection in the 1935
Constitution, and eventually, the 1973 Constitution, which retained the same wording of
the free speech clause:
No law shall be passed abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble and petition the Government for
redress of grievances.
Free speech has since enjoyed a preferred position in the scheme of our
constitutional values. 1 9 In Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Company, Inc.: 2 0
Property and property rights can be lost thru prescription; but human
rights are imprescriptible. If human rights are extinguished by the passage of
time, then the Bill of Rights is a useless attempt to limit the power of
government and ceases to be an e cacious shield against the tyranny of
o cials, of majorities, of the in uential and powerful, and of oligarchs —
political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the preservation
and vitality of our civil and political institutions; and such priority "gives these
liberties the sanctity and the sanction not permitting dubious intrusions." 2 1
Free speech was accorded with even greater protection and wider coverage with
the enactment of the 1987 Constitution, which added the more expansive word
"expression" in the free speech clause.
Freedom of speech has gained constitutional value among liberal democratic
societies. 2 2 This is because free speech promotes liberal and democratic values.
Particularly, it protects "democratic political process from abusive censorship" 2 3 and
promotes "equal respect for the moral self-determination of all persons [.]" 2 4
The signi cance of freedom of expression in our jurisdiction has been oft-
repeated in recent jurisprudence. Paraphrasing In re: Gonzales v. Commission on
Elections, 2 5 this Court in Chavez v. Gonzales 2 6 elucidated:
[T]he vital need of a constitutional democracy for freedom of expression is
undeniable, whether as a means of assuring individual self-ful llment; of
attaining the truth; of assuring participation by the people in social, including
political, decision-making; and of maintaining the balance between stability and
change. As early as the 1920s, the trend as re ected in Philippine and American
decisions was to recognize the broadest scope and assure the widest latitude
for this constitutional guarantee. The trend represents a profound commitment
to the principle that debate on public issue should be uninhibited, robust, and
wide-open. 2 7 (Citations omitted)
Further, in The Diocese of Bacolod v. Commission on Elections: 2 8
In a democracy, the citizen's right to freely participate in the exchange of
ideas in furtherance of political decision-making is recognized. It deserves the
highest protection the courts may provide, as public participation in nation-
building is a fundamental principle in our Constitution. As such, their right to
engage in free expression of ideas must be given immediate protection by this
court. 2 9
Freedom of expression, as with other cognate constitutional rights, is essential
to citizens' participation in a meaningful democracy. Through it, they can participate in
public affairs and convey their beliefs and opinion to the public and to the government.
3 0 Ideas are developed and arguments are re ned through public discourse. Freedom
of expression grants the people "the dignity of individual thought." 3 1 When they speak
their innermost thoughts, they take their place in society as productive citizens. 3 2
Through the lens of self-government, free speech guarantees an "ample opportunity for
citizens to determine, debate, and resolve public issues." 3 3 cSaATC
Speech that enlivens political discourse is the lifeblood of democracy. A free and
robust discussion in the political arena allows for an informed electorate to confront its
government on a more or less equal footing. 3 4 Without free speech, the government
robs the people of their sovereignty, leaving them in an echo chamber of autocracy.
Freedom of speech protects the "democratic political process from the abusive
censorship of political debate by the transient majority which has democratically
achieved political power." 3 5
In The Diocese of Bacolod:
Proponents of the political theory on "deliberative democracy" submit
that "substantial, open, [and] ethical dialogue is a critical, and indeed de ning,
feature of a good polity." This theory may be considered broad, but it de nitely
"includes [a] collective decision making with the participation of all who will be
affected by the decision." It anchors on the principle that the cornerstone of
every democracy is that sovereignty resides in the people. To ensure order in
running the state's affairs, sovereign powers were delegated and individuals
would be elected or nominated in key government positions to represent the
people. On this note, the theory on deliberative democracy may evolve to the
right of the people to make government accountable. Necessarily, this includes
the right of the people to criticize acts made pursuant to governmental
functions. 3 6 (Citations omitted)
Speech with political consequences occupies a higher position in the hierarchy of
protected speeches and is conferred with a greater degree of protection. The
difference in the treatment lies in the varying interests in each type of speech.
Nevertheless, the exercise of freedom of speech may be regulated by the State
pursuant to its sovereign police power. In prescribing regulations, distinctions are
made depending on the nature of the speech involved. In Chavez:
Some types of speech may be subjected to some regulation by the State under
its pervasive police power, in order that it may not be injurious to the equal right
of others or those of the community or society. The difference in treatment is
expected because the relevant interests of one type of speech, e.g., political
speech, may vary from those of another, e.g., obscene speech. Distinctions have
therefore been made in the treatment, analysis, and evaluation of the
permissible scope of restrictions on various categories of speech. 3 7 (Citations
omitted)
This Court recognized in The Diocese of Bacolod that political speech occupies a
preferred rank within our constitutional order, it being a direct exercise of the
sovereignty of the people. 3 8 In a separate opinion in Chavez, Associate Justice Antonio
Carpio underscored that "if ever there is a hierarchy of protected expressions, political
expression would occupy the highest rank[.]" 3 9
In contrast, other types of speeches, such as commercial speech, are treated in
this jurisdiction as "low value speeches." 4 0
I n Disini, Jr. v. Secretary of Justice , 4 1 this Court has recognized that "
[c]ommercial speech . . . is not accorded the same level of protection as that given to
other constitutionally guaranteed forms of expression[.]" 4 2 This is because, as I opined
in that case, the protection accorded to commercial speech is anchored on its
informative character and it merely caters to the market. 4 3
Since the value of protection accorded to commercial speech is only to the
extent of its channel to inform, advertising is not on par with other forms of expression.
In contrast, political speech is "indispensable to the democratic and republican
mooring of the state whereby the sovereignty residing in the people is best and most
effectively exercised through free expression." 4 4
The rationale behind this distinction lies in the nature and impact of political
speech:
Political speech is motivated by the desire to be heard and understood, to move
people to action. It is concerned with the sovereign right to change the contours
of power whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal with
which we protect this kind of speech does not depend on our evaluation of the
cogency of the message. Neither do we assess whether we should protect
speech based on the motives of COMELEC. We evaluate restrictions on freedom
of expression from their effects. We protect both speech and medium because
the quality of this freedom in practice will de ne the quality of deliberation in
our democratic society. 4 5
Media law professor Eric Barendt explained it succinctly in his book, Freedom of
Speech: cHDAIS
To con ne freedom of expression to political speech (or at any rate to protect it

most rigorously in this context) does reduce the scale of the di culty. Political
speech is immune from restriction, because it is a dialogue between members
of the electorate and between governors and governed, and is, therefore,
conducive, rather than inimical, to the operation of a constitutional democracy.
The same is not so obviously true of other categories of 'speech,' for which the
protection of the free speech may be claimed — pornography or commercial
advertising. 4 6
Philosopher and free speech advocate Alexander Meiklejohn similarly forwarded
this thesis in arguing "that the principle of freedom of speech was rooted in principles
of self-government, and that there should be absolute protection for the discussion of
public issues, but considerably less protection for speech that did not discuss issues
of public interest." 4 7
As a direct exercise of the people's sovereignty, political expression is accorded
the highest protection. This is even more heightened during the election period, when
political activities and speech are propelled by the electorate's ideals and choice of
representatives. Given the crucial importance of political expression in our democracy,
it should be favored and guarded against any illicit and unwarranted government
censorship.
II
To be a true channel of democracy, free speech must be exercised without prior
restraint or censorship and subsequent punishment. In Associate Justice Santiago
Kapunan's separate opinion in Iglesia ni Cristo v. Court of Appeals: 4 8
The rights of free expression and free exercise of religion occupy a
unique and special place in our constellation of civil rights. The primacy our
society accords these freedoms determines the mode it chooses to regulate
their expression. But the idea that an ordinary statute or decree could, by its
effects, nullify both the freedom of religion and the freedom of expression puts
an ominous gloss on these liberties. Censorship law as a means of regulation
and as a form of prior restraint is anathema to a society which places high
significance to these values. 4 9
Prior restraint is an o cial governmental restriction on any form of expression in
advance of its actual utterance, dissemination, or publication. Thus, freedom from prior
restraint is freedom from government censorship, regardless of its form and the
branch of government that wielded it. When a governmental act is in prior restraint of
expression, it bears a heavy presumption against its validity. 5 0 In Chavez:

Prior restraint refers to o cial governmental restrictions on the press or
other forms of expression in advance of actual publication or dissemination.
Freedom from prior restraint is largely freedom from government censorship of
publications, whatever the form of censorship, and regardless of whether it is
wielded by the executive, legislative or judicial branch of the government. Thus,
it precludes governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the payment of
license taxes for the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing o ces of certain
newspapers, resulting in the discontinuation of their printing and publication,
are deemed as previous restraint or censorship. Any law or o cial that requires
some form of permission to be had before publication can be made, commits
an infringement of the constitutional right, and remedy can be had at the courts.
5 1 (Citations omitted)
On the other hand, subsequent punishment is the imposition of liability on the

individual exercising his or her freedom. The penalty may be penal, civil, or
administrative. 5 2
Prior restraint is deemed a more severe restriction on expression than
subsequent punishment because while the latter dissuades expression, ideas are still
disseminated to the public. On the other hand, prior restraint prevents even the
dissemination of ideas. 5 3
Even if there is no prior restraint, the exercise of expression may still be subject
to subsequent punishment, either civilly or criminally. If the expression is not subject to
the lesser restriction of subsequent punishment, it follows that it cannot also be
subject to the greater restriction of prior restraint. On the other hand, if the expression
warrants prior restraint, it is unavoidably subject to subsequent punishment. 5 4
Because our Constitution favors freedom of expression, any form of prior
restraint is an exemption and bears a heavy presumption of invalidity. 5 5
Nevertheless, free speech is not absolute, and not all prior restraint regulations
are held invalid. Free speech must "not be injurious to the equal enjoyment of others
having equal rights, nor injurious to the rights of the community or society." 5 6 ISHCcT
Doctrinally, this Court has settled the applicable tests in determining the validity
of free speech regulations. To justify an intrusion on expression, we employ two (2)
tests, namely: (1) the clear and present danger test; and (2) the dangerous tendency
test.
In Cabansag v. Fernandez, 5 7 this Court laid down what these tests entail:
The [clear and present danger test], as interpreted in a number of cases, means
that the evil consequence of the comment or utterance must be "extremely
serious and the degree of imminence extremely high" before the utterance can
be punished. The danger to be guarded against is the "substantive evil" sought
to be prevented. And this evil is primarily the "disorderly and unfair
administration of justice." This test establishes a de nite rule in constitutional
law. It provides the criterion as to what words may be published. Under this rule,
the advocacy of ideas cannot constitutionally be abridged unless there is a clear
and present danger that such advocacy will harm the administration of justice.
xxx xxx xxx
The question in every case, according to Justice Holmes, is whether the
words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils
that congress has a right to prevent. It is a question of proximity and degree.
The "dangerous tendency" rule, on the other hand, has been adopted in
cases where extreme di culty is confronted in determining where the freedom
of expression ends and the right of courts to protect their independence begins.
There must be a remedy to borderline cases and the basic principle of this rule
lies in that the freedom of speech and of the press, as well as the right to
petition for redress of grievance, while guaranteed by the constitution, are not
absolute. They are subject to restrictions and limitations, one of them being the
protection of the courts against contempt.
This rule may be epitomized as follows: If the words uttered create a
dangerous tendency which the state has a right to prevent, then such words are
punishable. It is not necessary that some de nite or immediate acts of force,
violence, or unlawfulness be advocated. It is su cient that such acts be
advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence, or
unlawfulness. It is su cient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the legislative body seeks
to prevent. 5 8 (Citations omitted)
As its designation connotes, the clear and present danger test demands that the
danger not only be clear, but also present. In contrast, the dangerous tendency test
does not require that the danger be present. In In Re: Gonzales: 5 9
The term clear seems to point to a causal connection with the danger of the
substantive evil arising from the utterance questioned. Present refers to the time
element. It used to be identi ed with imminent and immediate danger. The
danger must not only be probable but very likely inevitable. 6 0
The clear and present danger test has undergone changes from its inception in
Schenck v. U.S., 6 1 where it was applied to speeches espousing anti-government action.
62
In the 1951 case of Dennis v. U.S. , 6 3 the imminence requirement of the test was
diminished. That case, which involved communist conspiracy, adopted Judge Learned
Hand's framework, where it must be asked "whether the gravity of the 'evil,' discounted
by its improbability, justi es such invasion of free speech as is necessary to avoid the
danger." 6 4
Nevertheless, in the 1969 case of Brandenburg v. Ohio , 6 5 the U.S. High Court not
only restored the imminence requirement, but added "an intent requirement which
according to a noted commentator ensured that only speech directed at inciting
lawlessness could be punished." 6 6
As the prevailing standard, Brandenburg limits the clear and present danger
test's application "to expression where there is 'imminent lawless action.'" 6 7
The Brandenburg standard was applied in Reyes v. Bagatsing . 6 8 In Reyes, this
Court required the existence of grave and imminent danger to justify the procurement
of permit for use of public streets. It held:
By way of a summary. The applicants for a permit to hold an assembly should
inform the licensing authority of the date, the public place where and the time
when it will take place. If it were a private place, only the consent of the owner or
the one entitled to its legal possession is required. Such application should be
led well ahead in time to enable the public o cial concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant
but at another public place. It is an indispensable condition to such refusal or
modi cation that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority. Free speech and peaceable assembly, along with
the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary, —
even more so than on the other departments — rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of course, dispense with what has
been so felicitiously (sic) termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of such rights, enjoying as they do
precedence and primacy. 6 9 CAacTH
This standard was applied in the recent case of Chavez:

[T]he clear and present danger rule . . . rests on the premise that speech may be
restrained because there is substantial danger that the speech will likely lead to
an evil the government has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be substantive, "extremely serious
and the degree of imminence extremely high." 7 0 (Citations omitted)
In ABS-CBN Broadcasting Corporation v. Commission on Elections , 7 1 this Court
explained that to justify a restriction on expression, a substantial government interest
must be clearly shown:
A government regulation is su ciently justi ed if it is
within the constitutional power of the government, if it furthers an
important or substantial government interest; if the governmental
interest is unrelated to the suppression of free expression; and if
the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest.
Hence, even though the government's purposes are legitimate and
substantial, they cannot be pursued by means that broadly sti e fundamental
personal liberties, when the end can be more narrowly achieved. 7 2 (Citations
omitted)
In cases involving expression that strengthens suffrage, all the more should
freedom of expression be protected and upheld. 7 3 It is the government's interest that
the sanctity and integrity of the electoral process are preserved and the right to vote is
protected by providing safe and accessible areas for voting and campaigning.
However, to uphold a restriction, the governmental interest must outweigh the people's
freedom of expression. 7 4
In this case, the regulations are forms of prior restraint on political speech
because they disallow certain partisan political activities and expression before they
are conducted and uttered. Speci cally, Section 36.8 of the Overseas Absentee Voting
Act of 2013 and Section 74 (II) (8) of Commission on Elections Resolution No. 10035
declare unlawful the engagement of Filipinos abroad in partisan political activities
during the 30-day overseas voting period.
This results in a chilling effect that would discourage Filipinos abroad to express
their opinion and political ideals during elections. Thus, being forms of prior restraint on
the people's political expression, the assailed provisions bear a heavy presumption of
invalidity.
III
When faced with contentions involving prior restraint on free speech, it is
important to create a distinction between content-based and content-neutral
regulations. Whether a regulation is content-based or content-neutral spells out the
difference in the test applied in assaying a governmental regulation.
A regulation is content-neutral if it is "merely concerned with the incidents of the
speech, or one that merely controls the time, place[,] or manner, and under well-de ned
standards[,]" 7 5 regardless of the content of the speech. On the other hand, content-
based restraint or censorship is based on the subject matter of the expression. 7 6
In a content-based regulation, the governmental action is tested with the
strictest scrutiny "in light of its inherent and invasive impact." 7 7 It bears a heavy
presumption of unconstitutionality. To pass constitutional muster, the regulation has to
overcome the clear and present danger rule. 7 8
Thus, the government must show the type of harm sought to be prevented by the
content-based regulation. It must be based on a "substantive and imminent evil that has
taken the life of a reality already on ground." 7 9 There must be an inquiry on whether the
words used will "bring about the substantive evils that Congress has a right to prevent."
8 0 To justify the regulation, strict scrutiny requires a compelling State interest, and that
it is narrowly tailored and the least restrictive means to achieve that interest. 8 1
In his dissent in Soriano v. Laguardia, 8 2 Chief Justice Reynato Puno explained the
rationale behind the application of the strict scrutiny test:
The test is very rigid because it is the communicative impact of the speech that
is being regulated. The regulation goes into the heart of the rationale for the
right to free speech; that is, that there should be no prohibition of speech merely
because public o cials disapprove of the speaker's views. Instead, there should
be a free trade in the marketplace of ideas, and only when the harm caused by
the speech cannot be cured by more speech can the government bar the
expression of ideas. 8 3 (Emphasis supplied, citation omitted) IAETDc
In Newsounds Broadcasting Network, Inc. v. Dy: 8 4

The immediate implication of the application of the "strict scrutiny" test is that
the burden falls upon respondents as agents of government to prove that their
actions do not infringe upon petitioners' constitutional rights. As content
regulation cannot be done in the absence of any compelling reason, the burden
lies with the government to establish such compelling reason to infringe the
right to free expression. 8 5
While content-based regulations are "treated as more suspect than content-
neutral" 8 6 regulations due to discrimination in regulating the expression, content-
neutral regulations are subject to "lesser but still heightened scrutiny." 8 7
In content-neutral regulations, the intermediate approach is applied where only a
substantial governmental interest is required to be established. 8 8 This is lower than
the stringent standard of compelling State interest required in content-based
regulations, since content-neutral regulations are not designed to suppress free speech
but only its incidents. 8 9

Through the intermediate approach, the validity of a content-neutral regulation is
analyzed along the following parameters: (1) whether it is within the government's
constitutional power; (2) whether it furthers an important or substantial governmental
interest; (3) whether the governmental interest is unrelated to the suppression of free
expression; and (4) whether the incidental restriction on freedoms of speech,
expression, and the press is no greater than is essential to the furtherance of that
interest. 9 0
Nevertheless, content-neutral regulations may still be invalidated if the incidental
restriction on expressive freedom is greater than is essential to achieve the
governmental interest. 9 1 The regulation must be "reasonable and narrowly drawn to t
the regulatory purpose, with the least restrictive means undertaken"; 9 2 otherwise, it
must be struck down.
This Court has recognized that the right of suffrage necessarily includes the right
to express one's chosen candidate to the public. 9 3 Especially during the election
period, the right to free speech and expression is fundamental and consequential:
"[S]peech serves one of its greatest public purposes in the context of elections
when the free exercise thereof informs the people what the issues are, and who
are supporting what issues." At the heart of democracy is every advocate's right
to make known what the people need to know, while the meaningful exercise of
one's right of suffrage includes the right of every voter to know what they need
to know in order to make their choice. 9 4 (Citations omitted)
During the election period, citizens seek information on candidates and
campaigns and, upon reaching a choice, campaign and persuade other people to
likewise vote for their candidate. At this time, people are most engaged in political
discourse. Expressing a political ideology and campaigning for a candidate cannot be
divorced from one's right of suffrage. Even electoral candidates rely on their supporters
to campaign for them. Thus, any speech or act that directly involves the right of
suffrage is a political activity by the people themselves.
I n Social Weather Stations, Inc. v. Commission on Elections , 9 5 this Court
discussed the regulation of speech in the context of campaigns done by non-
candidates or non-members of political parties:
Regulation of speech in the context of electoral campaigns made by
persons who are not candidates or who do not speak as members of a political
party which are, taken as a whole, principally advocacies of a social issue that
the public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private
citizen which will not amount to an election paraphernalia to be validly
regulated by law. 9 6
I n Social Weather Stations, Inc., this Court considered the parameters within
which a regulation may be held valid:
Regulation of election paraphernalia will still be constitutionally valid if it
reaches into speech of persons 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 declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation (a) should be provided by law,
(b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means
to achieve that object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored on the basis of its content. 9 7 (Emphasis in
the original) DcHSEa
Here, petitioner Loida Nicolas-Lewis assails the constitutionality and validity of

Section 36.8 of the Overseas Absentee Voting Act and Section 74 (II) (8) of
Commission on Elections Resolution No. 10035. These are uniform provisions that
prohibit partisan political activities abroad during the 30-day overseas voting period. 9 8
Section 36 (8) of the Overseas Absentee Voting Act states:
SECTION 36. Prohibited Acts. — In addition to the prohibited acts
xxx xxx xxx
36.8. For any person to engage in partisan political activity abroad
during the thirty (30)-day overseas voting period[.]
Section 74 (II) (8) of the Commission on Elections Resolution No. 10035 states:
Sec. 74. Election offenses/prohibited acts. —
xxx xxx xxx
(8) For any person to engage in partisan political activity abroad
during the thirty (30)-day overseas voting period.
The de nition of "partisan political activity" is found in Section 79 (b) of Batas
Pambansa Blg. 881, or the Omnibus Election Code. It states:
(b) The term "election campaign" or "partisan political activity" refers to an
act designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes and/or
undertaking any campaign for or against a candidate
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or
against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any candidate for
public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for
or against a candidate.
The foregoing enumerated acts if performed for the purpose of
enhancing the chances of aspirants for nomination for candidacy to a public
o ce by a political party, aggroupment, or coalition of parties shall not be
considered as election campaign or partisan election activity.
Public expressions or opinions or discussions of probable issues in a
forthcoming election or on attributes of or criticisms against probable
candidates proposed to be nominated in a forthcoming political party
convention shall not be construed as part of any election campaign or partisan
political activity contemplated under this Article.
From this, it can easily be determined that the assailed provisions are content-
based regulations precisely because they speci cally target a kind of speech identi ed
by its political element. Contrary to respondent's submission, 9 9 the assailed provisions
are not content-neutral. While they seem to merely limit the time allowed in conducting
partisan political activities, they should be evaluated without losing sight of the nature
of the expression they seek to regulate.
In her separate opinion, Associate Justice Estela Perlas-Bernabe characterized
the regulations as forms of content-neutral restriction, arguing that they merely
regulate the place and time in which political speech may be uttered. I disagree.
The prohibition on the conduct of partisan political activities does not merely
control the incidents or manner of the political expression, but actually regulates the
content of the expression. As admitted by respondent, the limits are placed on the
conduct of partisan political activities to subdue the "violence and atrocities" 1 0 0 that
mar the electoral process. This means that the regulation is anchored on the content,
nature, and effect of the prohibited activities.
Although guised as merely limiting the manner of the expression, the assailed
provisions cut deep into the expression's communicative impact and political
consequences. The regulations are not merely incidental. SCaITA
Considering a regulation as content-neutral is only appropriate when the

governmental interest and purpose are clear and unambiguous. In this case, the
government's purpose in placing a 30-day restriction on political activities abroad is
unclear.
To sustain the validity of Section 36.8 of the Overseas Absentee Voting Act and
Section 74 (II) (8) of Commission on Elections Resolution No. 10035, they must be
evaluated with strict scrutiny. To pass constitutional muster, there must be a showing
of a compelling State interest in the 30-day prohibition of partisan political activities
abroad.
However, there are no clear, present, and substantial electoral dangers that will
be prevented by the prohibition they impose. It is unclear if the substantial dangers and
evils sought to be curtailed even exist in every foreign jurisdiction where the prohibition
is applied.
It cannot be assumed that the same "horrendous and unforgivable atrocities" 1 0 1
during the election period in the Philippines are present and recurring in each and every
country where Filipinos are situated. Every country has a unique election experience; it
is uncertain if our overseas voters have been through any electoral con ict or violence
to justify the State's restraint on free speech abroad. The prohibition applied to partisan
political activities within the Philippines cannot be applied as a blanket prohibition that
covers overseas voting. The government cannot instate a regulation that unduly
interferes with protected expression.
In overseas voting, Philippine embassies, consulates, and foreign service
establishments are designated as polling precincts. 1 0 2 Filipinos abroad would need to
allot hours of travel to get to them without the bene t of an election holiday. A longer
duration of a 30-day voting period abroad is, therefore, understandable. The longer
voting period is enacted to encourage Filipinos overseas to participate in the elections.
Considering the Philippines' experience during the election period, the two-day
prohibition on partisan political activities here bears a crucial role in subduing the dire
consequences and abuses that attend it. The tail end of the election campaign period is
the peak of candidates' and political parties' efforts to secure a win, and prolonged
political campaigns frequently result in "violence and even death . . . because of the heat
engendered by such political activities." 1 0 3
Overseas, the sweeping prohibition on the partisan political activities during the
30-day voting period has no added value in "safeguarding the conduct of an honest,
peaceful, and orderly elections" abroad. 1 0 4 There is no discernable reason behind the
blanket prohibition. Through the lens of strict scrutiny, the assailed law and resolution
fail because there are no dangers and evils present abroad that are "substantive,
'extremely serious[,] and the degree of imminence extremely high.'" 1 0 5
Being forms of prior restraint and content-based regulation, the assailed
provisions bear the heavy presumption of unconstitutionality. The government, then,
has to prove that the regulations are valid. Here, respondent failed in discharging its
burden of proof.
In maintaining their constitutionality, respondent insists that the assailed
provisions are content-neutral. 1 0 6 As such, respondent contends that they are
permissible for satisfying the intermediate test laid down by jurisprudence, i.e.,
provided by law, reasonable, narrowly tailored to meet their objective, and the least
restrictive means to achieve that objective. 1 0 7
Respondent heavily capitalizes on this Court's ruling in In Re: Gonzales 1 0 8 to
justify the assailed law. Quoting In Re: Gonzales, respondent postulates that while
freedom of expression is at the core of a partisan political activity, Congress has the
power to regulate and limit this freedom "for the sake of general welfare and, ironically
enough, safeguarding the right of suffrage." 1 0 9 It quotes a relevant portion of the
Decision:
This is not to deny that Congress was indeed called upon to seek
remedial measures for the far-from-satisfactory condition arising from the too-
early nomination of candidates and the necessarily prolonged political
campaigns. The direful consequences and the harmful effects on the public
interest with the vital affairs of the country sacri ced many a time to purely
partisan pursuits were known to all. Moreover, it is no exaggeration to state that
violence and even death did frequently occur because of the heat engendered by
such political activities. Then, too, the opportunity for dishonesty and corruption,
with the right to suffrage being bartered, was further magnified. aTHCSE
Under the police power then, with its concern for the general welfare and
with the commendable aim of safeguarding the right of suffrage, the legislative
body must have felt impelled to impose the foregoing restrictions. It is
understandable for Congress to believe that without the limitations thus set
forth in the challenged legislation, the laudable purpose of Republic Act No.
4880 would be frustrated and nullified. 1 1 0
Thus, respondent argues that the measure is reasonable because there is a need
to counteract the prevailing abuses and violence that mar the election process. It adds:
[T]he realities of Philippine politics in 1969 and four decades after remain the
same — the unbridled passions of supporters and candidates alike have, in the
recent years, even resulted, in some of the most horrendous and unforgivable
atrocities. . . .
. . . With that, the regulation, through the prohibition of partisan political
activity during the day or days that votes are cast, is not only reasonable, but
warranted as well. 1 1 1
Moreover, respondent asserts that the provisions are narrowly tailored to meet
their objective of enhancing the opportunity of all candidates to be heard. Respondent
construes the provisions in conjunction with Section 261 of the Omnibus Election Code,
which provides:
SECTION 261. Prohibited Acts. — The following shall be guilty of an
election offense:
xxx xxx xxx
(k) Unlawful electioneering. — It is unlawful to solicit votes or
undertake any propaganda on the day of registration before the board of
election inspectors and on the day of election, for or against any candidate or
any political party within the polling place and with a radius of thirty meters
thereof.
xxx xxx xxx
(cc) On candidacy and campaign:
xxx xxx xxx
(6) Any person who solicits votes or undertakes any propaganda, on
the day of election, for or against any candidate or any political party within the
polling place or within a radius of thirty meters thereof .
Accordingly, respondent notes that partisan political activities are only prohibited
on the days of casting of votes and within a 30-meter radius of the polling place. The
prohibition, respondent further contends, is only addressed to election candidates. 1 1 2
Lastly, respondent adds that the prohibition is the least restrictive means in
safeguarding the conduct of the elections because it is narrowly limited to "solicitation
of votes done at the designated polling precincts and only during the time when casting
of votes has begun." 1 1 3
These arguments fail to address the constitutional test required to uphold the
assailed provisions' validity.
To recapitulate, Section 36.8 of the Overseas Absentee Voting Act and Section
74 (II) (8) of Commission on Elections Resolution No. 10035 are content-based
regulations because they strike at the core of the communicative effect of political
expression and speech. Thus, the presumption of invalidity is put against them.
Respondent's reliance on their presumption of constitutionality cannot hold water.
Respondent's argument that there is substantial governmental interest in the
regulations must likewise fail. On the contrary, this case calls for the application of the
strictest scrutiny test. Respondent must show that the evils sought to be subdued by
the assailed provisions are "substantive, 'extremely serious[,] and the degree of
imminence extremely high.'" 1 1 4
Here, respondent takes refuge in this Court's ruling in In Re: Gonzales. Arguing
that the regulations are needed to curb the practices that taint the electoral process,
respondent is rm that the assailed provisions must be upheld as valid because they
are similar to the regulation involved in In Re: Gonzales. Respondent is mistaken.
In a sharply divided vote in In Re: Gonzales, this Court upheld the constitutionality
of Section 50-B of Republic Act No. 4880, or the Revised Election Code. The provision,
which is a verbatim copy of Section 76 (b) of the Omnibus Election Code, de nes the
term "partisan political activity":
Sec. 50-B. Limitation upon the period of Election Campaign or
Partisan Political Activity. — It is unlawful for any person whether or not a voter
or candidate, or for any group or association of persons, whether or not a
political party or political committee, to engage in an election campaign or
partisan political activity except during the period of one hundred twenty days
immediately preceding an election involving a public o ce voted for at large
and ninety days immediately preceding an election for any other elective public
office.
The term 'Candidate' refers to any person aspiring for or seeking an
elective public o ce, regardless of whether or not said person has already led
his certi cate of candidacy or has been nominated by any political party as its
candidate.
The term 'Election Campaign' or 'Partisan Political Activity' refers to acts
designed to have a candidate elected or not or promote the candidacy of a
person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other
groups of persons for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a party or candidate;
(b) Holding political conventions, caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against a any
candidate or party;
(c) Making speeches, announcements or commentaries or holding
interviews for or against the election of any party or candidate for public office;
(d) Publishing or distributing campaign literature or materials;
(e) Directly or indirectly soliciting votes and/or undertaking any
campaign or propaganda for or against any candidate or party;
(f) Giving, soliciting, or receiving contributions for election campaign
purposes, either directly or indirectly. Provided, That simple expressions or
opinion and thoughts concerning the election shall not be considered as part of
an election campaign: Provided, further, That nothing herein stated shall be
understood to prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the candidates for public
office whom he supports. IDSEAH
In In Re: Gonzales, this Court determined that Section 50-B of Republic Act No.
4880 is a content-based regulation because it is a limitation that cuts deep into the
substance of the speech and expression. Proceeding to apply the clear and present
danger test, the majority reasoned that the limits on freedom of speech is justi ed by
the serious substantive evil that affects the electoral process. It held that the evils that
the law sought to prevent are "not merely in danger of happening, but actually in
existence, and likely to continue unless curbed or remedied." 1 1 5 It ruled:
For under circumstances that manifest abuses of the gravest character,
remedies much more drastic than what ordinarily would suffice would indeed be
called for. The justi cation alleged by the proponents of the measures weighs
heavily with the members of the Court, though in varying degrees, in the
appraisal of the aforesaid restrictions to which such precious freedoms are
subjected. They are not unaware of the clear and present danger that calls for
measures that may bear heavily on the exercise of the cherished rights of
expression, of assembly, and of association.
This is not to say that once such a situation is found to exist, there is no
limit to the allowable limitations on such constitutional rights. The clear and
present danger doctrine rightly viewed requires that not only should there be an
occasion for the imposition of such restrictions but also that they be limited in
scope. 1 1 6
This case, however, bears a different factual milieu. It would be a judicial error to
carelessly apply the ruling in In Re: Gonzales here.
Respondent overlooked that the prohibition on partisan political activities in In
Re: Gonzales speci cally pertains to elections conducted in the Philippines. Likewise,
this Court's justi cation in In Re: Gonzales operates within the premise and context of
an election period within the Philippines. Respondent cannot simply rely on that
justi cation in arguing for the validity of the assailed provisions in this case. The
application of the prohibition is different for overseas elections.
Respondent cannot use the perceived electoral violence in the Philippines as a
justi cation for a prohibition applied abroad. Thus, I cannot agree with respondent's
insistence that "the prohibition on partisan political activities during the 30-day
overseas voting period . . . is no different from the election-day prohibition on partisan
political activities" 1 1 7 within the Philippines.
It is clear that respondent failed to discharge its burden of proof. It has not
shown why prohibiting partisan political activities abroad is necessary to maintain
public order during the election period. It is uncertain what clear and present dangers
the prohibition aims to dispel within the different countries abroad. Hence, the
presumption of the regulations' invalidity stands.
Absent any clear and present danger, the people's exercise of free speech cannot
be restrained by the government. Without any discernable reason to broadly impose the
prohibition on political activities abroad, this Court is impelled to favor and uphold the
exercise of free expression.
The Overseas Absentee Voting Act's noble intent to encourage Filipinos abroad
to exercise their right of suffrage 1 1 8 will fail to materialize if we leave our people
voiceless and powerless. A meaningful democratic participation through the exercise
of the right of suffrage demands that citizens have the right to know what they ought to
know, and to express what they know to make informed choices and in uence others
to do the same.
ACCORDINGLY , I vote that the Petition be GRANTED . Section 36.8 of the
Overseas Absentee Voting Act of 2013 and Section 74 (II) (8) of Commission on
Elections Resolution No. 10035 are declared UNCONSTITUTIONAL .
JARDELEZA , J., concurring :
I vote to grant the petition on the ground that Section 36.8 1 of Republic Act No.
(RA) 9189, 2 as amended by RA 10590, 3 and Section 74 (II) (8) 4 of Commission on
Elections (COMELEC) Resolution No. 10035 5 are impermissible content-based
regulations. These provisions both provide that it shall be unlawful for any person to
engage in partisan political activity abroad during the 30-day overseas voting period.
Partisan political activity or election campaign is, in turn, de ned under Section 79 (b)
of Batas Pambansa Bilang (BP) 881 6 as an act designed to promote the election or
defeat of a particular candidate or candidates to a public o ce. These acts shall
include: aCIHcD
1. Forming organizations, associations, clubs, committees or other groups of

persons for the purpose of soliciting votes and/or undertaking any
campaign for or against a candidate;
2. Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a candidate;
3. Making speeches, announcements or commentaries, or holding interviews
for or against the election of any candidate for public office;
4. Publishing or distributing campaign literature or materials designed to
support or oppose the election of any candidate; or
5. Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
Section 79 (b) provides, at the same time, when the foregoing acts shall not be
considered as election campaign or partisan political activity and these are:
[1.] x x x [I]f performed for the purpose of enhancing the chances of
aspirants for nomination for candidacy to a public o ce by a political party,
aggroupment, or coalition of parties x x x[; and]
[2.] Public expressions or opinions or discussions of probable issues in a
forthcoming election or on attributes of or criticisms against probable
candidates proposed to be nominated in a forthcoming political party
convention x x x.
Petitioner alleges that on the basis of the above regulations, she, together with
thousands of similarly situated Filipinos all over the world, was prohibited by the
different Philippine Consulates from conducting information campaigns, rallies, and
outreach programs in support of their respective candidates for the May 2016 national
elections. Petitioner contends that these regulations violate one's freedom of speech,
expression, and assembly, and are content-based prior restraints on speech which
curtail the expression of political inclinations, views, and opinions of Filipinos abroad. I
agree.
It bears emphasis at the outset that the Court should take cognizance of this
case because of the presence of a justiciable controversy involving free speech, a
textually identi ed fundamental right under the Constitution, 7 and not because of the
alleged transcendental importance of the issue petitioner invokes. There exists an
actual justiciable controversy when there is a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence. 8 Here, there is
an evident clash of the parties' legal claims, particularly on whether Section 36.8 of RA
9189, as amended by RA 10590, and Section 74 (II) (8) of COMELEC Resolution No.
10035 impair the free speech rights of petitioner and of all Filipinos abroad. 9 Section
36.8 of RA 9189, as amended by RA 10590 is an existing law that was fully
implemented, as evidenced by the issuance of Section 74 (II) (8) of COMELEC
Resolution No. 10035 during the 2016 national elections. The purported threat or
incidence of injury is, therefore, not merely speculative or hypothetical but rather, real
and apparent. 1 0
Equally important, the Court in Gios-Samar, Inc. v. Department of Transportation
and Communications 1 1 already clari ed the proposition that the purported
transcendental importance of an issue does not operate as a talismanic license to
justify direct recourse to the Court. Thus:
To be clear, the transcendental importance doctrine does not clothe us
with the power to tackle factual questions and play the role of a trial court. The
only circumstance when we may take cognizance of a case in the rst instance ,
despite the presence of factual issues, is in the exercise of our constitutionally-
expressed task to review the su ciency of the factual basis of the President's
proclamation of martial law under Section 18, Article VII of the 1987
Constitution. The case before us does not fall under this exception.
xxx xxx xxx
Accordingly, for the guidance of the bench and the bar, we
reiterate that when a question before the Court involves determination
of a factual issue indispensable to the resolution of the legal issue,
the Court will refuse to resolve the question regardless of the
allegation or invocation of compelling reasons, such as the
transcendental or paramount importance of the case. Such question
must rst be brought before the proper trial courts or the CA, both of
which are specially equipped to try and resolve factual questions . 1 2
(Citations omitted; emphasis in the original.)
The justiciable controversy present here involves a pure question of law. We are
not being called to rule on questions of fact. This direct recourse to Us via this petition
is, therefore, being allowed on this basis as well, and not on petitioner's misplaced
invocation of the transcendental importance doctrine.
Going now to the substance of the petition, I reiterate that my vote here is
grounded on the nature of Section 36.8 of RA 9189, as amended by RA 10590, and
Section 74 (II) (8) of COMELEC Resolution No. 10035 which, as impermissible content-
based restrictions, do not survive strict scrutiny analysis.
Prior restraint refers to o cial governmental restrictions on the press or other
forms of expression in advance of actual publication or dissemination. 1 3 Section 36.8
of RA 9189, as amended by RA 10590, and Section 74 (II) (8) of COMELEC Resolution
No. 10035 t this de nition because these regulations restrain speech and expression
before they are made. While governmental imposition of varying forms of prior
restraints of speech and expression may present a constitutional issue, it does not
follow, by design, that the regulations herein questioned ipso facto violate the
Constitution. 1 4 The State may, indeed, curtail speech when necessary to advance a
significant and legitimate interest. 1 5 Any prior restraint, however, which does so comes
to this Court bearing a heavy presumption against its constitutional validity, which the
Government has the burden to justify. 1 6 cHaCAS
Consequently, Our inquiry here does not end with the determination as to whether
the challenged act constitutes some form of restraint on freedom of speech. A
distinction has to be made whether the restraint is content-neutral or content-based. 1 7
A content-neutral restraint is merely concerned with the incidents of the speech, or one
that merely controls the time, place or manner, and under well-de ned standards. 1 8 A
content-based restraint, on the other hand, is based on the subject matter of the
utterance or speech. 1 9
In my view, Section 36.8 of RA 9189, as amended by RA 10590, and Section 74
(II) (8) of COMELEC Resolution No. 10035 fall under the content-based classi cation.
Following Ward v. Rock Against Racism , 2 0 the restrictions here describe speech,
expression, and assembly in terms of time and manner and were not adopted because
of the Government's disagreement with the message the subject speech or expression
relays. There is no evidence, or suggestion, that the Government made any distinction
based on the speaker's views or perspectives. Viewpoint, however, is just one aspect of
free speech or expression. The Constitution's hostility to content-based regulation
extends not only to a restriction on a particular viewpoint , but also to a prohibition of
public discussion of an entire topic . 2 1 Hence, while Section 36.8 of RA 9189, as
amended by RA 10590, and Section 74 (II) (8) of COMELEC Resolution No. 10035 do
not discriminate between viewpoints, they do discriminate against a whole class of
speech, which is political speech. Whether individuals may exercise their free speech
rights during the 30-day voting period overseas depends entirely on whether their
speech is related to a political campaign. 2 2 The regulations do not reach other
categories of speech, such as commercial solicitation, distribution, and display. 2 3
Section 36.8 of RA 9189, as amended by RA 10590, and Section 74 (II) (8) of COMELEC
Resolution No. 10035 thus "[slip ] from the neutrality of time, place, and circumstance
into a concern about content." 2 4
Again, following Ward, Section 36.8 of RA 9189, as amended by RA 10590, and
Section 74 (II) (8) of COMELEC Resolution No. 10035 may not have been adopted by
the Government because of disagreement with the message the speech conveys.
Nevertheless, following Reed v. Town of Gilbert, Arizona , 2 5 these regulations cannot be
justi ed without reference to their content as regulated speech. Regulations that
appear content-neutral will be treated as content-based because they are, in essence,
related to the suppression of expression.
Moreover, the United States (US) Supreme Court in Reed cautioned that Ward
involved a facially content-neutral restriction on the use, in a city-owned music venue, of
sound ampli cation systems not provided by the city. It was in that context that the US
Supreme Court then looked to governmental motive, including whether the Government
had regulated speech because of its disagreement with its message, and whether the
regulation was justi ed without reference to the content of the speech. The US
Supreme Court stressed that Ward's framework applies only if a statute is content-
neutral.
Thus, Reed declared that the crucial rst step in the content-neutrality analysis is
to determine whether the law is content-neutral on its face. The mere assertion of a
content-neutral purpose is not enough to save a law which, on its face, discriminates
based on content. 2 6 A law that is content-based on its face will be treated as such
regardless of the Government's benign motive, content-neutral justi cation, or lack of
animus toward the ideas contained in the regulated speech. 2 7 Citing the dissent of
Associate Justice Antonin Scalia in Hill v. Colorado , 2 8 Reed acknowledged that
innocent motives do not eliminate the danger of censorship presented by a facially
content-based statute, as future Government o cials may one day wield such statutes
to suppress disfavored speech:
x x x That is why the First Amendment expressly targets the operation of
the laws — i.e., the "abridge[ement] of speech" — rather than merely the motives
of those who enacted them. U.S. Const., Amdt. 1. "'The vice of content-based
legislation . . . is not that it is always used for invidious, thought-control
purposes, but that it lends itself to use for those purposes.'" x x x 2 9
Furthermore, the cast of the restriction, whether content-neutral or content-
based, determines the test by which the challenged act is assayed with. 3 0 Content-
based laws, which are generally treated as more suspect than content-neutral laws
because of judicial concern with discrimination in the regulation of expression, 3 1 are
subject to strict scrutiny. Content-neutral regulations of speech or of expressive
conduct are subject to a lesser, but still heightened scrutiny 3 2 which is commonly
referred to as an intermediate approach. 3 3 DACcIH
Being content-based regulations, Section 36.8 of RA 9189, as amended by RA

10590, and Section 74 (II) (8) of COMELEC Resolution No. 10035 are subject to strict
scrutiny, which requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest. 3 4 In my view, the
Government in this case has failed to discharge its burden in this respect.
What constitutes compelling state interest is measured by the scale of rights
and powers arrayed in the Constitution and calibrated by history. It is akin to the
paramount interest of the State for which some individual liberties must give way, such
as the public interest in safeguarding health or maintaining medical standards, or in
maintaining access to information on matters of public concern. 3 5
In this case, respondent advances the wisdom behind Section 36.8 of RA 9189,
as amended by RA 10590, and Section 74 (II) (8) of COMELEC Resolution No. 10035,
which is to maintain the integrity of the election process and curb the violence and
atrocities that have, in recent years, marred the electoral exercise. 3 6 These are the
same objectives behind Sections 50-A and 50-B of the Revised Election Code, which
limit the period of election campaign or the conduct of partisan political activity to 150
days immediately preceding the national elections or 90 days immediately preceding
the local elections. The Court in Gonzales v. COMELEC 3 7 had found the restrictions
reasonable and warranted in light of a "serious substantive evil affecting the electoral
process, not merely in danger of happening, but actually in existence, and likely to
continue unless curbed or remedied." 3 8
It is beyond question that the State has an important and substantial interest in
seeing to it that the conduct of elections be honest, orderly, and peaceful, and that the
right to suffrage of its citizens be protected at all times. This interest, I agree, is
compelling in Philippine setting, where history would readily show how the partisan
political activities of candidates and their supporters have not only fostered "huge
expenditure of funds on the part of candidates," but have also resulted to the
"corruption of the electorate," and worse, have "precipitated violence and even deaths."
3 9 But what is true in one location is not necessarily true elsewhere. The prevailing
substantive evils recognized in Gonzales may be endemic to the Philippines alone.
Respondent has failed to demonstrate that these same evils persist in the foreign
locations where overseas voting is allowed.
At the same time, the prohibition under Section 36.8 of RA 9189, as amended by
RA 10590, and Section 74 (II) (8) of COMELEC Resolution No. 10035 is not narrowly
tailored to achieve the Government's objective of preserving the integrity and order of
the electoral process. The regulations completely prohibit partisan political activities
with neither any limitation as to place or location nor as to the speaker or actor.
Respondent, in an effort to save the regulation, proffers a resort to statutory
construction. Respondent proposes that the regulations must be harmonized with
Section 261 (k) of BP 881, which reads:
Sec. 261. Prohibited Acts. — The following shall be guilty of an
election offense:
xxx xxx xxx
(k) Unlawful electioneering. — It is unlawful to solicit votes or
undertake any propaganda on the day of registration before the
board of election inspectors and on the day of election, for or
against any candidate or any political party within the polling
place and with a radius of thirty meters thereof.
Accordingly, respondent insists that the prohibition under Section 36.8 of RA
10035 shall be taken to mean that it is con ned to the polling places and to a radius of
30 meters.
Respondent also proposes that We look into the intent of Congress to limit the
prohibition on campaigning abroad during the 30-day voting period to candidates.
Respondent cites the sponsorship speech of Senator Aquilino Pimentel III for Senate
Bill No. 3312, where he said that one of the changes agreed upon was to introduce a
proviso making it an election offense for candidates to campaign in the country they
are visiting within the 30-day voting period for overseas voting. 4 0
Respondent's arguments are flawed.
Indeed, the touchstone of statutory interpretation is the probable intent of the
legislature. When interpreting a statute, We must ascertain legislative intent so as to
effectuate the purpose of a particular law. But the rst step in determining that intent is
to scrutinize the actual words of the statute, giving them a plain and common-sense
meaning. When the words are clear and unambiguous, there is no need for statutory
construction or resort to other indicia of legislative intent, such as legislative history. 4 1
The language of Section 36.8 of RA 9189, as amended by RA 10590, and Section
74 (II) (8) of COMELEC Resolution No. 10035 is clear and unambiguous. If Congress
truly intended the interpretations suggested by respondent, it could have easily
identi ed the exact place where the prohibition applies and to whom the prohibition is
addressed. As the regulations plainly read, however, they prohibit any person (and not
just the candidates) from engaging in partisan political activities without any
qualification as to the location where these activities are conducted.
Courts must presume that a legislature says in a statute what it means and
means in a statute what it says there. 4 2 When the words of a statute are unambiguous,
then judicial inquiry is complete. 4 3 I cannot subscribe to the proposition of respondent
that the legislative history of RA 9189, as amended by RA 10590, points to a different
result. Judicial inquiry into the reach of Section 36.8 begins and ends with what Section
36.8 does say and with what it does not. 4 4 HSCATc
Thus, the prior restraint imposed in Section 36.8 of RA 9189, as amended by RA

10590, and Section 74 (II) (8) of COMELEC Resolution No. 10035 is not narrowly drawn
to protect the avowed interest of the government. 4 5 This second requirement of the
strict scrutiny test stems from the fundamental premise that citizens should not be
hampered from pursuing legitimate activities in the exercise of their constitutional
rights. While rights may be restricted, the restrictions must be minimal or only to the
extent necessary to achieve the purpose or to address the State's compelling interest.
When it is possible for governmental regulations to be more narrowly drawn to avoid
conflicts with constitutional rights, then they must be so narrowly drawn. 4 6
All told, the application of a strict or exacting scrutiny to a content-based prior
restraint becomes all the more imperative when political speech is involved. The
fundamental right to freedom of speech and expression has its fullest and most urgent
application to speech and expression uttered during a campaign for political o ce. 4 7
For one, discussions of public issues and debate on the qualifications of candidates are
integral to the operation of the system of Government established by our Constitution.
4 8 Also, under our system of laws, everyone has the right to promote his or her agenda
and attempt to persuade society of the validity of his or her position through normal
democratic means. It is in the public square that deeply held convictions and differing
opinions should be distilled and deliberated upon. 4 9
Thus, the Constitution affords the broadest protection to political speech and
expression in order to assure the unfettered interchange of ideas for the bringing about
of political and social changes desired by the people. 5 0 In a republic where the people
are sovereign, the ability of the citizenry to make informed choices among candidates
for o ce is essential, for the identities of those who are elected will inevitably shape
the course that we follow as a nation. 5 1
I hasten to add at this point that nothing We say here, however, should be
construed to mean that the institution of a campaign-free zone in polling places abroad
during the voting period is altogether foreclosed.
In fact, the Court has already observed in Osmeña v. COMELEC 5 2 that Our
previous decisions in Gonzales and Valmonte v. COMELEC 5 3 have demonstrated that
the State can prohibit campaigning outside a certain period as well as campaigning
within a certain place. The Court went on to say that in Valmonte, the validity of a
COMELEC resolution prohibiting members of citizen groups or associations from
entering any polling place except to vote was upheld. The Court then concluded that "
[i]ndeed, §261 (k) of the Omnibus Election Code makes it unlawful for anyone to solicit
votes in the polling place and within a radius of 30 meters thereof." 5 4
Statutorily mandated campaign-free zones have also been validated in the US. In
Burson, the US Supreme Court upheld the validity of a provision of the Tennessee Code
which prohibits the solicitation of votes and the display or distribution of campaign
materials within 100 feet of the entrance to a polling place. The US Supreme Court
found the provision to be a content-based restriction, but nonetheless found it valid
through the lens of strict scrutiny. The US Supreme Court acknowledged that it was one
of the rare cases in which it has held that a law survives strict scrutiny. It arrived at its
decision on account of "[a] long history, a substantial consensus, and simple common
sense" 5 5 showing that some restricted zone around polling places is necessary to
protect the fundamental right of citizens to cast a ballot in an election free from the
taint of intimidation and fraud.
Given Burson and Our own pronouncements in Osmeña, the establishment of a
campaign-free zone in polling places overseas remains an open and viable possibility.
WHEREFORE , I vote to GRANT the petition and DECLARE Section 36.8 of RA
10035 as UNCONSTITUTIONAL for violating Section 4, Article III of the 1987
Constitution.
Footnotes
1. Approved on May 27, 2013.
2. Promulgated on January 13, 2016.

3. Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad. x x x.
4. Nicolas-Lewis v. COMELEC, 529 Phil. 642 (2006).

5. Rollo, p. 8.
6. Id. at 94-95.
7. Peralta v. Philippine Postal Corporation, G.R. No. 223395, December 4, 2018; Biraogo v.
Philippine Truth Commission of 2010, 651 Phil. 374, 438 (2010).
8. G.R. No. 225442, August 8, 2017, 835 SCRA 350, 385.
9. G.R. No. 232131, April 24, 2018.
10. Id.
11. Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, supra note 8, at 385-
386.
12. Gonzales v. COMELEC, 137 Phil. 471 (1969).
13. Estipona, Jr. v. Judge Lobrigo, G.R. No. 226679, August 15, 2017, 837 SCRA 160, 171.
14. Id.
15. Chavez v. Gonzales, 569 Phil. 155, 195 (2008).
16. The Diocese of Bacolod v. COMELEC, 751 Phil. 301, 444 (2015), citing National Press Club
v. COMELEC, 283 Phil. 795, 810 (1992).
17. ABS-CBN Broadcasting Corporation v. COMELEC, 380 Phil. 780, 792 (2000).
18. Mutuc v. COMELEC, 146 Phil. 798, 805-806 (1970).

19. 758 Phil. 67 (2015).
20. BAYAN v. Ermita, 522 Phil. 201, 224 (2006), citing Reyes v. Bagatsing, 210 Phil. 457, 467
(1983).
21. Id.
22. Disini v. The Secretary of Justice, 727 Phil. 28, 121 (2014).
23. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452,
488 (2010).
24. Estrada v. Sandiganbayan, 421 Phil. 290, 355 (2001).
25. David v. Macapagal-Arroyo, 522 Phil. 705, 726 (2006).

26. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 23, at
489.
27. Id. at 485-486.
28. This test permits limitations on speech once a rational connection has been established
between the speech restrained and the danger contemplated; Chavez v. Gonzales, supra
note 15, at 200.
29. This rule rests on the premise that speech may be restrained because there is substantial
danger that the speech will likely lead to an evil the government has a right to prevent;
Chavez v. Gonzales, id.
30. This is used as a standard when courts need to balance conflicting social values and
individual interests, and requires a conscious and detailed consideration of the interplay
of interests observable in a given situation; Chavez v. Gonzales, id.
31. Supra note 15.
32. Id. at 204-208.
33. 1-United Transport Koalisyon (1-UTAK) v. COMELEC, supra note 19, at 84.
34. See Police Department of City of Chicago v. Mosley , 408 U.S. 92, 96 (1972), wherein the U.S.
Supreme Court held that the government may not grant a forum to acceptable views yet
deny it from those who "express less favored or more controversial views."
<https://supreme.justia.com/cases/federal/us/408/92/> (visited August 9, 2019).
35. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989
<https://supreme.justia.com/cases/federal/us/491/781/> (visited August 9, 2019).
36. Supra note 16.
37. 1-United Transport Koalisyon (1-UTAK) v. COMELEC, supra note 19.

38. Chavez v. Gonzales, supra note 15.
39. Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571, 588 (2001).
40. The Diocese of Bacolod v. COMELEC, supra note 16, at 381.

41. Social Weather Stations, Inc. v. COMELEC, supra at 590.
42. Gutierrez v. The House of Representatives Committee on Justice, 658 Phil. 322, 382 (2011).
43. Philippine Consumers Foundation, Inc. v. National Telecommunications Commission, 216
Phil. 185, 195 (1984).
44. Supra note 16.

45. Promulgated on January 15, 2014.
46. Disini v. The Secretary of Justice, supra note 22.
47. ABS-CBN Broadcasting Corporation v. COMELEC, supra note 17.

48. G.R. No. 103956, March 31, 1992, 207 SCRA 712, 717.
PERLAS-BERNABE, J . , concurring:
1. Entitled "AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY

QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD, APPROPRIATING FUNDS
THEREFOR, AND FOR OTHER PURPOSES," otherwise known as "THE OVERSEAS
ABSENTEE VOTING ACT OF 2003," approved on February 13, 2003.
2. Entitled "AN ACT AMENDING REPUBLIC ACT NO. 9189, ENTITLED 'AN ACT PROVIDING FOR
A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE
PHILIPPINES ABROAD, APPROPRIATING FUNDS THEREFOR AND FOR OTHER
PURPOSES'" otherwise known as "THE OVERSEAS VOTING ACT OF 2013," approved on
May 27, 2013.
3. See ponencia, pp. 12-13.
4. 602 Phil. 255 (2009).
5. Id. at 271.
6. 491 U.S. 781 (1989).

7. See id. See also Police Department of City of Chicago v. Mosley , 408 U.S. 92 (1972), wherein
the Supreme Court of the United States of America held that government may not grant
a forum to acceptable views yet deny it from those who "express less favored or more
controversial views."
8. See Separate Concurring Opinion of Senior Associate Justice Antonio T. Carpio in Chavez v.
Gonzales, 569 Phil. 155, 238 (2008).
9. Id.
10. Id.
11. Id. at 238.
12. See ponencia in Chavez v. Gonzales, id. at 205-206; citing Osmeña v. COMELEC, 351 Phil.
692, 717 (1998).
13. See Chavez v. Gonzales, id. at 210 and 238; emphasis supplied. See also Ward v. Rock
Against Racism, supra note 6.
14. In Gonzales v. COMELEC, the Court held that "even though the governmental purposes be
legitimate and substantial, they cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved ,"
as in this case. Indeed, "precision of regulation is the touchstone in an area so
closely related to our most precious freedoms ." (137 Phil. 471, 507 [1969];
emphases supplied)
15. Dated April 23, 2016.

16. See Comment, p. 29.
17. See id. at 21.
18. Emphasis and underscoring supplied.

19. Naval v. COMELEC, 738 Phil. 506, 535 (2014).
20. See Comment, p. 21.
21. See COMELEC Resolution No. 9843, entitled "IMPLEMENTING RULES AND REGULATIONS
OF REPUBLIC ACT NO. 10590, OTHERWISE KNOWN AS 'AN ACT AMENDING REPUBLIC
ACT NO. 9189, ENTITLED 'AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS
ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD,
APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES,''" otherwise known
as "THE RULES AND REGULATIONS IMPLEMENTING THE OVERSEAS VOTING ACT OF
2003, AS AMENDED," approved on January 15, 2014.
22. See Dissenting Opinion of Retired Associate Justice Dante O. Tinga in Spouses Romualdez
v. COMELEC, 576 Phil. 357, 433 (2008).
23. 751 Phil. 301 (2015).

24. Id. at 343, citing Senior Associate Justice Antonio T. Carpio's Separate Concurring Opinion
in Chavez v. Gonzales, supra note 8, at 245.
25. The Diocese of Bacolod v. COMELEC; id. at 343.
LEONEN, J., concurring:

1. Republic Act No. 9189 (2003), as amended by Republic Act No. 10590 (2013), sec. 36.8
provides:
SECTION 36. Prohibited Acts. — In addition to the prohibited acts provided by law, it
shall be unlawful:
xxx xxx xxx
36.8. For any person to engage in partisan political activity abroad during the thirty (30)-
day overseas voting period[.]
2. General Instructions for the Special Board of Election Inspectors and Special Ballot Reception
and Custody Group in the Conduct of Manual Voting and Counting of Votes under
Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003"
as amended by Republic Act No. 10590 for Purposes of the May 9, 2016 National and
Local Elections.
3. Reyes v. Bagatsing, 210 Phil. 457, 465-467 (1983) [Per C.J. Fernando, En Banc].
4. CONST., art. II, sec. 1.
5. Chavez v. Gonzales, 569 Phil. 155, 198 (2008) [Per C.J. Puno, En Banc].
6. George A. Malcolm, The Malolos Constitution, 36 POLITICAL SCIENCE QUARTERLY 91
(1921), available at <https.//archive.org/details/jstor-2142663> (last visited on August
12, 2019).
7. U.S. v. Bustos, 37 Phil. 731, 739 (1918) [Per J. Malcolm, First Division] citing Jose Rizal,
Filipinas Despues de Cien Anos (The Philippines A Century Hence) (1912).
8. WILLIAM COHEN, THE FIRST AMENDMENT: CONSTITUTIONAL PROTECTION OF
EXPRESSION AND CONSCIENCE 1 (2003).
9. Id. at 2.
10. Id.
11. Id.
12. Id. at 3.
13. David S. Bogen, Freedom of Speech and Origins, 42 MD. L. REV. 429, 430-431 (1983),
available at <https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?
article=2503&context=mlr> (last visited on August 12, 2019) and JOSEPH J. HEMMER,
COMMUNICATION LAW: THE SUPREME COURT AND THE FIRST AMENDMENT 4 (2000).
14. WILLIAM COHEN, THE FIRST AMENDMENT: CONSTITUTIONAL PROTECTION OF
EXPRESSION AND CONSCIENCE 8-9 (2003). See also Masses Publishing Co. v. Patten,
244 F. 535 (S.D.N.Y. 1917).
15. U.S. v. Bustos, 37 Phil. 731, 740 (1918) [Per J. Malcolm, First Division].
16. Id.
17. 43 Phil. 58 (1922) [Per J. Johnson, En Banc].
18. Id. at 62.
19. Reyes v. Bagatsing, 210 Phil. 457, 475 (1983) [Per C.J. Fernando, En Banc]
20. 151-A Phil. 656 (1973) [Per J. Makasiar, First Division].

21. Id. at 676.
22. See Primicias v. Fugoso, 80 Phil. 71 (1948) [Per J. Feria, En Banc]. See also EDWIN BAKER,
HUMAN LIBERTY AND FREEDOM OF SPEECH 30-31 (1989).
23. DAVID A.J. RICHARDS, FREE SPEECH AND THE POLITICS OF IDENTITY 18 (1999).
24. Id. at 21.
25. 137 Phil. 471 (1969) [Per J. Fernando, En Banc].
26. 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].
27. Id. at 197.
28. 751 Phil. 301 (2015) [Per J. Leonen, En Banc].
29. Id. at 332.
30. ERIC BARENDT, FREEDOM OF SPEECH 20 (1987).

31. JOSEPH J. HEMMER, JR., COMMUNICATION LAW: THE SUPREME COURT AND THE FIRST
AMENDMENT 3 (2000).
32. Id.
33. Id.
35. DAVID A.J. RICHARDS, FREE SPEECH AND THE POLITICS OF IDENTITY 18 (1999).
36. The Diocese of Bacolod v. Commission on Elections, 751 Phil. 301, 360 (2015) [Per J.
Leonen, En Banc].
37. Chavez v. Gonzales, 569 Phil. 155, 199 (2008) [Per J. Puno, En Banc].
Leonen, En Banc].
39. Id. citing J. Carpio, Separate Concurring Opinion in Chavez v. Gonzales, 569 Phil. 155, 245
(2008) [Per J. Puno, En Banc].
40. Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893, 933 (1996) [Per J. Puno, En Banc].
41. 727 Phil. 28 (2014) [Per J. Abad, En Banc].
42. Id. at 110.
43. See J. Leonen, Dissenting Opinion in Disini, Jr. v. Secretary of Justice, 727 Phil. 28 (2014)
[Per J. Abad, En Banc].
44. Id. at 420.

Leonen, En Banc].
47. WILLIAM COHEN, THE FIRST AMENDMENT: CONSTITUTIONAL PROTECTION OP

EXPRESSION AND CONSCIENCE 41 (2003).
48. 328 Phil. 893 (1996) [Per J. Puno, En Banc].
49. Id. at 953-954.
50. United Transport Koalisyon v. Commission on Elections, 758 Phil. 67, 84 (2015) [Per J.
Reyes, En Banc].
51. Chavez v. Gonzales, 569 Phil. 155, 203-204 (2008) [Per J. Puno, En Banc].
52. J. Sandoval-Gutierrez, Concurring Opinion in Chavez v. Gonzales, 569 Phil. 155, 224 (2008)
[Per J. Puno, En Banc].
53. See Chavez v. Gonzales, 569 Phil. 155 (2008) [Per J. Puno, En Banc] and Iglesia ni Cristo v.
Court of Appeals, 328 Phil. 893 (1996) [Per J. Puno, En Banc].
54. J. Sandoval-Gutierrez, Concurring Opinion in Chaves v. Gonzales, 569 Phil. 155, 240-241
(2008) [Per J. Puno, En Banc].
56. Primicias v. Fugoso, 80 Phil. 71, 75 (1948) [Per J. Feria, En Banc].
57. 102 Phil. 152 (1957) [Per J. Bautista Angelo, First Division].
58. Id. at 161-163.

60. Id. at 496.
61. 249 U.S. 47 (1919).
63. 341 U.S. 494 (1951).
65. 95 U.S. 444 (1969).

67. See footnote 33 of J. Carpio, Separate Concurring Opinion in Chavez v. Gonzales, 569 Phil.
155, 242 (2008) [Per C.J. Puno, En Banc].
68. Reyes v. Bagatsing, 210 Phil. 457 (1983) [Per J. J.B.L. Reyes, En Banc].
69. Id. at 475.

70. Chavez v. Gonzales, 569 Phil. 155, 200 (2008) [Per C.J. Puno, En Banc].
71. 380 Phil. 780 (2000) [Per J. Panganiban, En Banc].
72. Id. at 795.
73. Id. at 795-796 citing Mutuc v. Commission on Elections, 146 Phil. 798 (1970) [Per J.
Fernando, First Division].
74. Id. at 796.
75. Newsounds Broadcasting Network, Inc. v. Dy , 602 Phil. 255, 271 (2009) [Per J. Tinga,
Second Division].
76. Id.
78. Id. See also Ayer Productions Pty. Ltd. v. Capulong, 243 Phil. 1007 (1988) [Per J. Feliciano,
En Banc].
80. Cabansag v. Fernandez, 102 Phil. 152, 163 (1957) [Per J. Bautista Angelo, First Division].
81. See Divinagracia v. Consolidated Broadcasting System, Inc., 602 Phil. 625 (2009) [Per J.
Tinga, Second Division].
82. 605 Phil. 43 (2009) [Per J. Velasco, Jr., En Banc].

83. Id. at 163.
84. 602 Phil. 255 (2009) [Per J. Tinga, Second Division].
85. Id. at 274.
86. Id. at 271 citing GUNTHER, ET AL., CONSTITUTIONAL LAW 964 (14th ed., 2001).
87. Id.
88. Osmeña v. Commission on Elections, 351 Phil. 692, 718 (1998) [Per J. Mendoza, En Banc].
89. Id. at 718-719.

91. Social Weather Stations, Inc. v. Commission on Elections, 409 Phil. 571, 588 (2001) [Per J.
Leonen, En Banc].
Leonen, En Banc].
94. Id. at 372.
95. 757 Phil. 483 (2015) [Per J. Leonen, En Banc].
96. Id. at 516.

97. Id. at 516-517.
98. Rollo, p. 4.
99. Id. at 124.
100. Id. at 125.

101. Id.
102. Commission on Elections Resolution No. 9843 (2014), art. 89, in relation to Republic Act
No. 10590 (2013), sec. 2 (l).
103. In re: Gonzales v. Commission on Elections, 137 Phil. 471, 506 (1969) [Per J. Fernando, En
Banc].
104. Rollo, p. 125.
106. Rollo, p. 124.

107. Id.
109. Rollo, p. 116.
110. Id. at 124-125.
111. Id. at 125.
112. Rollo, p. 122.

113. Id. at 125.
115. In re: Gonzales v. Commission on Elections, 137 Phil. 471, 500 (1969) [Per J. Fernando, En
Banc].
116. Id. at 503.

117. Rollo, p. 117.
118. Id. at 121.
JARDELEZA, J ., concurring:
1. Sec. 36.8. For any person to engage in partisan political activity abroad during the thirty (30)-
day overseas voting period[.]
2. The Overseas Absentee Voting Act of 2003.
3. The Overseas Absentee Voting Act of 2013.
4. Sec. 74. Election offenses/prohibited acts. —
xxx xxx xxx
xxx xxx xxx

8. For any person to engage in partisan political activity abroad during the thirty (30)-day
overseas voting period.
5. General instructions for the Special Board of Election Inspectors and Special Ballot Reception
and Custody Group in the Conduct of Manual Voting and Counting of Votes under
Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003"
as amended by Republic Act No. 10590 for Purposes of the May 09, 2016 National and
Local Elections.
6. Omnibus Election Code of the Philippines.
7. Art. III, Sec. 4. — No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
8. Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City , G.R. No. 225442, August
8, 2017, 835 SCRA 350, 385.
9. See SPARK v. Quezon City, id.
10. SPARK v. Quezon City, supra at 386.
11. G.R. No. 217158, March 12, 2019.
12. Id.
13. Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, 545 SCRA 441, 491. Citation
omitted.
14. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S 789, 803-804
(1984), citing C.J. Burger's dissent in Metromedia, Inc. v. San Diego, 453 U.S. 490, 561
(1981).
15. Id. at 804, citing Schenck v. United States, 249 U.S. 47, 52 (1919).
16. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
17. Chavez v. Gonzales, supra note 13 at 493.

18. Newsounds Broadcasting Network, Inc. v. Dy , G.R. Nos. 170270 & 179411, April 2, 2009, 583
SCRA 333, 352.
19. Id.
20. 491 U.S. 781 (1989).

21. Burson v. Freeman, 504 U.S. 191, 197 (1992). Emphasis supplied.
22. Id.
23. Id.
24. Police Department of Chicago v. Mosley , 408 U.S. 92, 99 (1972). Emphasis supplied.
25. 135 S. Ct. 2218 (2015).
26. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642-643 (1994).
27. Reed v. Town of Gilbert, Arizona, supra at 2227.

28. 530 U.S. 703 (2000).
29. Reed v. Town of Gilbert, Arizona, supra at 2229.
30. Chavez v. Gonzales, supra note 13 at 493.
31. Newsounds Broadcasting Network, Inc. v. Dy, supra note 18.
32. Id.
33. Chavez v. Gonzales, supra note 13 at 493-494.
34. Citizens United v. Federal Election Commission, 558 U.S. 310, 882 (2010).
35. Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009, 582 SCRA 254,
296. Citations omitted.
36. Rollo, p. 376.
37. G.R. No. L-27833, April 18, 1969, 27 SCRA 835.
38. Id. at 864.

39. See Gonzales v. COMELEC, supra.
40. Rollo, p. 373.
41. Quarterman v. Kefauver, 55 Cal.App.4th 1366, 1371 (1997).
42. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992).
43. Id. at 254.
44. Id.
45. See Burson v. Freeman, supra note 21 at 119-200, where the US Supreme Court said that to
survive strict scrutiny, the State must do more than assert a compelling State interest,
but must also demonstrate that its law is necessary to serve the asserted interest. It
bears emphasis that the US Supreme Court did not categorically say that the State must
adopt the least restrictive means. The measure of the restriction, however, — whether it
should be the least or whether it being less/necessary would suffice — is a discussion
best left in another appropriate case.
46. SPARK v. Quezon City, supra note 8 at 419-420. Citation and emphasis omitted.
47. Buckley v. Valeo, 424 U.S. 1, 15, 256 (1976).
48. Id. at 14.
49. Ang Ladlad LGBT Party v. Commission on Elections, G.R. No 190582, April 8, 2010, 618
SCRA 32, 65.
50. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995).
51. Id. at 346-347.
52. G.R. No. 132231, March 31, 1998, 288 SCRA 447.
53. Resolution, G.R. No. 73551, February 11, 1988.
54. Osmeña v. COMELEC, supra at 470.
55. Burson v. Freeman, supra note 21 at 211.

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EN BANC

[G.R. No. 223705. August 14, 2019.]

LOIDA NICOLAS-LEWIS , petitioner, vs . COMMISSION ON ELECTIONS ,

J.C. REYES, JR. , J : p

On grounds of violation of the freedom of speech, of expression, and of

Section 79. Definitions. — x x x

Given that deeply ensconced in our fundamental law is the hostility

The paramount consideration in the analysis of the challenged provision,

What is more, while Section 64 thereof provides for speci c rules on

When faced with border line situations where freedom to speak by a

An example of a content-neutral restraint is a permit specifying the date,

I concur in the result. Nonetheless, I maintain that the provisions in question

To con ne freedom of expression to political speech (or at any rate to protect it

CD Technologies Asia, Inc. 2020 cdasiaonline.com

On the other hand, subsequent punishment is the imposition of liability on the

This standard was applied in the recent case of Chavez:

In Newsounds Broadcasting Network, Inc. v. Dy: 8 4

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Here, petitioner Loida Nicolas-Lewis assails the constitutionality and validity of

Considering a regulation as content-neutral is only appropriate when the

1. Forming organizations, associations, clubs, committees or other groups of

Being content-based regulations, Section 36.8 of RA 9189, as amended by RA

Thus, the prior restraint imposed in Section 36.8 of RA 9189, as amended by RA

2. Promulgated on January 13, 2016.

4. Nicolas-Lewis v. COMELEC, 529 Phil. 642 (2006).

18. Mutuc v. COMELEC, 146 Phil. 798, 805-806 (1970).

25. David v. Macapagal-Arroyo, 522 Phil. 705, 726 (2006).

37. 1-United Transport Koalisyon (1-UTAK) v. COMELEC, supra note 19.

40. The Diocese of Bacolod v. COMELEC, supra note 16, at 381.

44. Supra note 16.

47. ABS-CBN Broadcasting Corporation v. COMELEC, supra note 17.

1. Entitled "AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY

6. 491 U.S. 781 (1989).

15. Dated April 23, 2016.

18. Emphasis and underscoring supplied.

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LEONEN, J., concurring:

20. 151-A Phil. 656 (1973) [Per J. Makasiar, First Division].

30. ERIC BARENDT, FREEDOM OF SPEECH 20 (1987).

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47. WILLIAM COHEN, THE FIRST AMENDMENT: CONSTITUTIONAL PROTECTION OP

58. Id. at 161-163.

65. 95 U.S. 444 (1969).

69. Id. at 475.

82. 605 Phil. 43 (2009) [Per J. Velasco, Jr., En Banc].

89. Id. at 718-719.

96. Id. at 516.

CD Technologies Asia, Inc. 2020 cdasiaonline.com

106. Rollo, p. 124.

112. Rollo, p. 122.

116. Id. at 503.

xxx xxx xxx

17. Chavez v. Gonzales, supra note 13 at 493.

20. 491 U.S. 781 (1989).

27. Reed v. Town of Gilbert, Arizona, supra at 2227.

38. Id. at 864.

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