The Diocese of Bacolod vs. Commission On Elections

ASES REPORTED

SUPREME COURT REPORTS ANNOTATED

____________________

G.R. No. 205728. January 21, 2015.*

THE DIOCESE OF BACOLOD, represented by the MOST REV. BISHOP VICENTE M.
NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY,
petitioners, vs. COMMISSION ON ELECTIONS and the ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, respondents.
Remedial Law; Special Civil Actions; Certiorari; Rule 64 is not the exclusive remedy for all acts of
the Commission on Elections (COMELEC). Rule 65 is applicable especially to raise objections relating
to a grave abuse of discretion resulting in the ouster of juris-
_______________
* EN BANC.
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2 SUPREME COURT REPORTS ANNOTATED
The Diocese of Bacolod vs. Commission on Elections
diction.—Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction.
As a special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.
Election Contests; Appeals; Conditions in Order for the Supreme Court (SC) to Review Orders and
Decisions of the Commission on Elections (COMELEC) in Electoral Contests Despite Not Being
Reviewed by the COMELEC En Banc.—Based on ABS-CBN Broadcasting Corporation v. COMELEC,
323 SCRA 811 (2000), this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if: 1) It will prevent the miscarriage
of justice; 2) The issue involves a principle of social justice; 3) The issue involves the protection of labor;
4) The decision or resolution sought to be set aside is a nullity; or 5) The need for relief is extremely
urgent and certiorari is the only adequate and speedy remedy available.
Supreme Court; Jurisdictions; Subject Matter Jurisdiction; Words and Phrases; The jurisdiction of
the Supreme Court (SC) over the subject matter is determined from the allegations in the petition. Subject
matter jurisdiction is defined as the authority “to hear and determine cases of the general class to which
the proceedings in question belong and is conferred by the sovereign authority which organizes the court
and defines its powers.”—The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the authority “to hear and determine
cases of the general class to which the proceedings in question belong and is conferred by the sovereign
authority which organizes the court and defines its powers.” Definitely, the subject matter in this case is
different from the cases cited by respondents. Nothing less than the electorate’s political speech will be
affected by the restrictions imposed by COMELEC. 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
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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 define the quality of deliberation in our democratic society.
Same; Same; During elections, the Supreme Court (SC) has the power and the duty to correct any
grave abuse of discretion or any act tainted with unconstitutionality on the part of any government
branch or instrumentality.—During elections, we have the power and the duty to correct any grave abuse
of discretion or any act tainted with unconstitutionality on the part of any government branch or
instrumentality. This includes actions by the COMELEC. Furthermore, it is this court’s constitutional
mandate to protect the people against government’s infringement of their fundamental rights. This
constitutional mandate outweighs the jurisdiction vested with the COMELEC.
Courts; Hierarchy of Courts; The doctrine that requires respect for the hierarchy of courts was
created by the Supreme Court (SC) to ensure that every level of the judiciary performs its designated
roles in an effective and efficient manner.—The doctrine that requires respect for the hierarchy of courts
was created by this court to ensure that every level of the judiciary performs its designated roles in an
effective and efficient manner. Trial courts do not only determine the facts from the evaluation of the
evidence presented before them. They are likewise competent to determine issues of law which may
include the validity of an ordinance, statute, or even an executive issuance in relation to the Constitution.
To effectively perform these functions, they are territorially organized into regions and then into
branches. Their writs generally reach within those territorial boundaries. Necessarily, they mostly perform
the all-important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the constitutionality of such action. The consequences, of
course, would be national in scope. There are, however, some cases where resort to courts at their level
would not be practical considering their decisions could still be appealed before the higher courts, such as
the Court of Appeals.
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Same; Court of Appeals; The Court of Appeals (CA) is primarily designed as an appellate court that
reviews the determination of facts and law made by the trial courts. It is collegiate in nature .—The Court
of Appeals is primarily designed as an appellate court that reviews the determination of facts and law
made by the trial courts. It is collegiate in nature. This nature ensures more standpoints in the review of
the actions of the trial court. But the Court of Appeals also has original jurisdiction over most special civil
actions. Unlike the trial courts, its writs can have a nationwide scope. It is competent to determine facts
and, ideally, should act on constitutional issues that may not necessarily be novel unless there are factual
questions to determine.
Same; Hierarchy of Courts; The doctrine of hierarchy of courts is not an iron-clad rule.—The
doctrine of hierarchy of courts is not an iron-clad rule. This court has “full discretionary power to take
cognizance and assume jurisdiction [over] special civil actions for certiorari . . . filed directly with it for
exceptionally compelling reasons or if warranted by the nature of the issues clearly and specifically raised
in the petition.”
Constitutional Law; Freedom of Expression; In a democracy, the citizen’s right to freely participate
in the exchange of ideas in furtherance of political decision-making is recognized.—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.
Same; Same; The right to suffrage not only includes the right to vote for one’s chosen candidate,
but also the right to vocalize that choice to the public in general, in the hope of influencing their votes.—
In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen candidate,
but also the right to vocalize that choice to the
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VOL. 747, JANUARY 21, 2015 5
public in general, in the hope of influencing their votes. It may be said that in an election year, the
right to vote necessarily includes the right to free speech and expression. The protection of these
fundamental constitutional rights, therefore, allows for the immediate resort to this court.
Same; Same; This case concerns the right of petitioners, who are noncandidates, to post the
tarpaulin in their private property, as an exercise of their right of free expression.—The present petition
does not involve a dispute between the rich and poor, or the powerful and weak, on their equal
opportunities for media coverage of candidates and their right to freedom of expression. This case
concerns the right of petitioners, who are noncandidates, to post the tarpaulin in their private property, as
an exercise of their right of free expression. Despite the invocation of the political question doctrine by
respondents, this court is not proscribed from deciding on the merits of this case.
Same; Political Questions; What is generally meant, when it is said that a question is political, and
not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity,
or that it has been specifically delegated to some other department or particular officer of the
government, with discretionary power to act.—In Tañada v. Cuenco, 103 Phil. 1051 (1957), this court
previously elaborated on the concept of what constitutes a political question: What is generally meant,
when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by
the people in their primary political capacity, or that it has been specifically delegated to some other
department or particular officer of the government, with discretionary power to act. (Emphasis omitted) It
is not for this court to rehearse and reenact political debates on what the text of the law should be. In
political forums, particularly the legislature, the creation of the text of the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by the
executive branch. Thus, the creation of the law is not limited by particular and specific facts that affect
the rights of certain individuals, per se.
Same; Same; A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or those of the legislature.—A
political
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question arises in constitutional issues relating to the powers or competence of different agencies
and departments of the executive or those of the legislature. The political question doctrine is used as a
defense when the petition asks this court to nullify certain acts that are exclusively within the domain of
their respective competencies, as provided by the Constitution or the law. In such situation,
presumptively, this court should act with deference. It will decline to void an act unless the exercise of
that power was so capricious and arbitrary so as to amount to grave abuse of discretion.
Exhaustion of Administrative Remedies; Political Speeches; Sovereignty resides in the
people. Political speech is a direct exercise of the sovereignty. The principle of exhaustion of
administrative remedies yields in order to protect this fundamental right.—Petitioners’ exercise of their
right to speech, given the message and their medium, had understandable relevance especially during the
elections. COMELEC’s letter threatening the filing of the election offense against petitioners is already an
actionable infringement of this right. The impending threat of criminal litigation is enough to curtail
petitioners’ speech. In the context of this case, exhaustion of their administrative remedies as COMELEC
suggested in their pleadings prolongs the violation of their freedom of speech. Political speech enjoys
preferred protection within our constitutional order. In Chavez v. Gonzales, 545 SCRA 441 (2008),
Justice Carpio in a separate opinion emphasized: “[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.” Sovereignty resides in the people. Political
speech is a direct exercise of the sovereignty. The principle of exhaustion of administrative remedies
yields in order to protect this fundamental right.
Supreme Court; Jurisdiction; Suspension of the Rules; Time and again, we have held that the
Supreme Court (SC) “has the power to relax or suspend the rules or to except a case from their operation
when compelling reasons so warrant, or when the purpose of justice requires it, [and when] [w]hat
constitutes [as] good and sufficient cause that will merit suspension of the rules is discretionary upon
the court.”—Time and again, we have held that this court “has the power to relax or suspend the rules or
to except a case from their operation when compelling reasons so warrant, or when the purpose of justice
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VOL. 747, JANUARY 21, 2015 7
requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit suspension of
the rules is discretionary upon the court.” Certainly, this case of first impression where COMELEC has
threatened to prosecute private parties who seek to participate in the elections by calling attention to
issues they want debated by the public in the manner they feel would be effective is one of those cases.
Election Law; Fair Elections Act (R.A. No. 9006); Section 17 of Commission on Elections
(COMELEC) Resolution No. 9615, the rules and regulations implementing the Fair Elections Act,
regulating the posting of campaign materials only apply to candidates and political parties, and
petitioners are neither of the two.—Respondents considered the tarpaulin as a campaign material in their
issuances. The above provisions regulating the posting of campaign materials only apply to candidates
and political parties, and petitioners are neither of the two. Section 3 of Republic Act No. 9006 on
“Lawful Election Propaganda” also states that these are “allowed for all registered political parties,
national, regional, sectoral parties or organizations participating under the party list elections and for
all bona fide candidates seeking national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . . .” Section 6 of COMELEC Resolution No.
9615 provides for a similar wording. These provisions show that election propaganda refers to matter
done by or on behalf of and in coordination with candidates and political parties. Some level of
coordination with the candidates and political parties for whom the election propaganda are released
would ensure that these candidates and political parties maintain within the authorized expenses
limitation.
Constitutional Law; Freedom of Expression; In this case, the tarpaulin contains speech on a matter
of public concern, that is, a statement of either appreciation or criticism on votes made in the passing of
the Reproductive Health Law (RH Law). Thus, petitioners invoke their right to freedom of expression.—
True, there is no mention whether election campaign is limited only to the candidates and political parties
themselves. The focus of the definition is that the act must be “designed to promote the election or defeat
of a particular candidate or candidates to a public office.” In this case, the tarpaulin contains speech on a
matter of public concern, that is, a statement of either appreciation or criticism on votes made in the
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passing of the RH Law. Thus, petitioners invoke their right to freedom of expression.
Same; Same; The right to freedom of expression applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner of communication.
—Communication exists when “(1) a speaker, seeking to signal others, uses conventional actions because
he or she reasonably believes that such actions will be taken by the audience in the manner intended; and
(2) the audience so takes the actions.” “[I]n communicative action[,] the hearer may respond to the claims
by . . . either accepting the speech act’s claims or opposing them with criticism or requests for
justification.” Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech
sometimes referred to as ‘symbolic speech[,]’” such that “‘when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient
to bring into play the [right to freedom of expression].’” The right to freedom of expression, thus, applies
to the entire continuum of speech from utterances made to conduct enacted, and even to inaction itself as
a symbolic manner of communication.
Same; Same; Speech that promotes dialogue on public affairs, or airs out grievances and political
discontent, should be protected and encouraged.—Proponents of the political theory on “deliberative
democracy” submit that “substantial, open, [and] ethical dialogue is a critical, and indeed defining,
feature of a good polity.” This theory may be considered broad, but it definitely “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. Speech that
promotes dialogue on public affairs, or airs out grievances and political discontent, should thus be
protected and encouraged.
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VOL. 747, JANUARY 21, 2015 9
Same; Same; The Supreme Court (SC) has held free speech and other intellectual freedoms as
“highly ranked in our scheme of constitutional values.” These rights enjoy precedence and primacy.—
Petitioners invoke their “constitutional right to communicate their opinions, views and beliefs about
issues and candidates.” They argue that the tarpaulin was their statement of approval and appreciation of
the named public officials’ act of voting against the RH Law, and their criticism toward those who voted
in its favor. It was “part of their advocacy campaign against the RH Law,” which was not paid for by any
candidate or political party. Thus, “the questioned orders which . . . effectively restrain[ed] and curtail[ed]
[their] freedom of expression should be declared unconstitutional and void.” This court has held free
speech and other intellectual freedoms as “highly ranked in our scheme of constitutional values.” These
rights enjoy precedence and primacy. In Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc., 51 SCRA 189 (1973), this court discussed the preferred position occupied by
freedom of expression: 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 efficacious shield against the
tyranny of officials, of majorities, of the influential 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.”
Same; Same; “Political Speech” and “Commercial Speech,” Distinguished.—We distinguish
between political and commercial speech. Political speech refers to speech “both intended and received as
a contribution to public deliberation about some issue,” “foster[ing] informed and civic-minded
deliberation.” On the other hand, commercial speech has been defined as speech that does “no more than
propose a commercial transaction.” The expression resulting from the content of the tarpaulin is,
however, definitely political speech.
Same; Same; Election Propaganda; While the tarpaulin may influence the success or failure of the
named candidates and political
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parties, this does not necessarily mean it is election propaganda.—While the tarpaulin may
influence the success or failure of the named candidates and political parties, this does not necessarily
mean it is election propaganda. The tarpaulin was not paid for or posted “in return for consideration” by
any candidate, political party, or party list group.
Same; Same; Speech with political consequences is at the core of the freedom of expression and
must be protected by the Supreme Court (SC).—Speech with political consequences is at the core of the
freedom of expression and must be protected by this court. Justice Brion pointed out that freedom of
expression “is not the god of rights to which all other rights and even government protection of state
interest must bow.” The right to freedom of expression is indeed not absolute. Even some forms of
protected speech are still subject to some restrictions. The degree of restriction may depend on whether
the regulation is content-based or content-neutral. Content-based regulations can either be based on the
viewpoint of the speaker or the subject of the expression.
Same; Same; Clear and Present Danger Rule; Content-based regulation bears a heavy presumption
of invalidity, and this court has used the clear and present danger rule as measure.—Size limitations
during elections hit at a core part of expression. The content of the tarpaulin is not easily divorced from
the size of its medium. Content-based regulation bears a heavy presumption of invalidity, and this court
has used the clear and present danger rule as measure. Thus, in Chavez v. Gonzales, 545 SCRA 441
(2008): 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 justified by a
compelling reason, and the restrictions imposed are neither overbroad nor vague. (Citations omitted)
Under this rule, “the evil consequences sought to be prevented must be substantive, ‘extremely serious
and the degree of imminence extremely high.’” “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.”
Same; Same; Same; Even with the clear and present danger test, respondents failed to justify the
regulation. There is no compel-
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ling and substantial state interest endangered by the posting of the tarpaulin as to justify
curtailment of the right of freedom of expression.—Even with the clear and present danger test,
respondents failed to justify the regulation. There is no compelling and substantial state interest
endangered by the posting of the tarpaulin as to justify curtailment of the right of freedom of expression.
There is no reason for the state to minimize the right of noncandidate petitioners to post the tarpaulin in
their private property. The size of the tarpaulin does not affect anyone else’s constitutional rights.
Same; Same; “Content-Based Restraint” and “Content-Neutral Regulation,” Distinguished.—
Content-based restraint or censorship refers to restrictions “based on the subject matter of the utterance or
speech.” In contrast, content-neutral regulation includes controls merely on the incidents of the speech
such as time, place, or manner of the speech.
Same; Right of Peaceful Assembly; In the landmark case of Reyes v. Bagatsing, 125 SCRA 553
(1983), this court summarized the steps that permit applicants must follow which include informing the
licensing authority ahead of time as regards the date, public place, and time of the assembly .—In the
landmark case of Reyes v. Bagatsing, 125 SCRA 553 (1983), this court summarized the steps that permit
applicants must follow which include informing the licensing authority ahead of time as regards the date,
public place, and time of the assembly. This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test is the standard used for his
decision and the applicants are given the opportunity to be heard. This ruling was practically codified
in Batas Pambansa Blg. 880, otherwise known as the Public Assembly Act of 1985. Subsequent
jurisprudence have upheld Batas Pambansa Blg. 880 as a valid content-neutral regulation. In the 2006
case of Bayan v. Ermita, 488 SCRA 226 (2006), this court discussed how Batas Pambansa Blg. 880 does
not prohibit assemblies but simply regulates their time, place, and manner. In 2010, this court found
in Integrated Bar of the Philippines v. Atienza, 613 SCRA 518 (2010), that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue from
Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard.
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Same; Freedom of Expression; Limiting the maximum size of the tarpaulin would render ineffective
petitioners’ message and violate their right to exercise freedom of expression.—In this case, the size
regulation is not unrelated to the suppression of speech. Limiting the maximum size of the tarpaulin
would render ineffective petitioners’ message and violate their right to exercise freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading expressions
with political consequences. These should be encouraged, more so when exercised to make more
meaningful the equally important right to suffrage.
Same; Same; The guarantee of freedom of expression to individuals without any relationship to any
political candidate should not be held hostage by the possibility of abuse by those seeking to be elected.—
The guarantee of freedom of expression to individuals without any relationship to any political candidate
should not be held hostage by the possibility of abuse by those seeking to be elected. It is true that there
can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels of expenditures.
However, labelling all expressions of private parties that tend to have an effect on the debate in the
elections as election paraphernalia would be too broad a remedy that can stifle genuine speech like in this
case. Instead, to address this evil, better and more effective enforcement will be the least restrictive means
to the fundamental freedom.
Same; Same; Satire; Words and Phrases; Satire is a “literary form that employs such devices as
sarcasm, irony and ridicule to deride prevailing vices or follies,” and this may target any individual or
group in society, private and government alike.—The twin tarpaulins consist of satire of political parties.
Satire is a “literary form that employs such devices as sarcasm, irony and ridicule to deride prevailing
vices or follies,” and this may target any individual or group in society, private and government alike. It
seeks to effectively communicate a greater purpose, often used for “political and social criticism”
“because it tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more
thoroughly democratic than to have the high-and-mighty lampooned and spoofed.” Northrop Frye, well-
known in this literary field, claimed that satire had two defining features: “one is wit or humor founded on
fantasy or a sense of the grotesque and absurd, the other is an object of attack.” Thus,
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satire frequently uses exaggeration, analogy, and other rhetorical devices.
Same; Same; In an equality-based approach, “politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over speech.”—In an equality-based
approach, “politically disadvantaged speech prevails over regulation[,] but regulation promoting political
equality prevails over speech.” This view allows the government leeway to redistribute or equalize
‘speaking power,’ such as protecting, even implicitly subsidizing, unpopular or dissenting voices often
systematically subdued within society’s ideological ladder. This view acknowledges that there are
dominant political actors who, through authority, power, resources, identity, or status, have capabilities
that may drown out the messages of others. This is especially true in a developing or emerging economy
that is part of the majoritarian world like ours.
Same; Same; Regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner.—Clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and manner.
This is the effect of our rulings in Osmeña v. COMELEC, 288 SCRA 447 (1998) and National Press Club
v. COMELEC, 207 SCRA 1 (1992). 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.
Same; Same; 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 must only be with respect to the
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time, place, and manner of the rendition of the message.—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. For this purpose, it will not matter
whether the speech is made with or on private property.
Same; Same; Right to Property; Other than the right to freedom of expression and the meaningful
exercise of the right to suffrage, the present case also involves one’s right to property.—Other than the
right to freedom of expression and the meaningful exercise of the right to suffrage, the present case also
involves one’s right to property.
Same; Same; Same; Freedom of expression can be intimately related with the right to property.—
Freedom of expression can be intimately related with the right to property. There may be no expression
when there is no place where the expression may be made. COMELEC’s infringement upon petitioners’
property rights as in the present case also reaches out to infringement on their fundamental right to
speech.
Same; Same; This caricature, though not agreeable to some, is still protected speech.—The
tarpaulin in question may be viewed as producing a caricature of those who are running for public office.
Their message may be construed generalizations of very complex individuals and party list organizations.
They are classified into black and white: as belonging to “Team Patay” or “Team Buhay.” But this
caricature, though not agreeable to some, is still protected speech.
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Carpio, J., Separate Concurring Opinion:
Election Law; Political Ads; View that Republic Act (RA) No. 9006 regulates a host of other
campaign related acts, such as the airing and printing of paid political ads (Section 3.4 in relation to
Section 4) and the conduct of election surveys (Section 5), which involve not only political parties and
candidates but also other individuals or entities who fall within the ambit of these provisions.—Section
3.3 of RA 9006 and its implementing rule for the 2013 elections, Section 6(c) of Resolution 9615, are
regulations of general applicability, covering campaign speech of all — candidates, noncandidates,
political parties and nonpolitical parties. This conclusion is compelled by the absence of any provision in
RA 9006, and indeed, in any related statutes, limiting their application only to the campaign speech of
candidates and political parties. On the contrary, the penal clause of RA 9006 is couched in broad
language encompassing within its ambit anyone who breaches its provisions: “[v]iolation of th[e] Act and
the rules and regulations of the COMELEC issued to implement [it] shall be an election offense
punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code.” Indeed,
RA 9006 regulates a host of other campaign related acts, such as the airing and printing of paid political
ads (Section 3.4 in relation to Section 4) and the conduct of election surveys (Section 5), which involve
not only political parties and candidates but also other individuals or entities who fall within the
ambit of these provisions. RA 9006 is a generally applicable law as much as the Omnibus Election Code
is in the field of election propaganda regulation.
Same; Election Spending; Words and Phrases; View that “election spending” refers not only to
expenses of political parties and candidates but also to expenses of their supporters.—“Election
spending” refers not only to expenses of political parties and candidates but also to expenses of
their supporters. (Otherwise, all the limitations on election spending and on what constitutes lawful
election propaganda would be meaningless). Freeing noncandidates and non-parties from the coverage
of RA 9006 allows them to (1) print campaign ad banners and posters of any size and in any quantity, (2)
place TV and radio ads in national and local stations for any length of time, and (3) place full-page print
ads in broadsheets, tabloids and related media. Obviously,
16
printing posters of any size, placing full-page print ads, and running extended broadcast ads all
entail gargantuan costs. Yet, under the ponencia’s holding, so long as these are done by noncandidates
and nonpolitical parties, the state is powerless to regulate them.
Constitutional Law; Freedom of Expression; Free Speech Clause; To satisfy the strictures of the
Free Speech Clause, Congress needs to craft legislation on the sizing of campaign posters and other
paraphernalia with sufficient flexibility to address concerns inherent in the present fixed-dimension
model.—The practical effect of the fixed-size rule under Section 3.3 of RA 9006 (and its implementing
rule) is to further narrow the choices of poster locations for anyone wishing to display them in any of the
venues allowed by law. Voters who wish to make known to the public their choice of candidates (or for
that matter, candidates who wish to advertise their candidacies) through the display of posters are
precluded from doing so from certain areas not because these areas are off-limits but because, for reasons
of geography vis-à-vis the size of the poster, their contents simply become illegible. Such restriction on
campaign speech appears to me to be “greater than is essential” to advance the important government
interests of minimizing election spending and ensuring orderly elections. To satisfy the strictures of the
Free Speech Clause, Congress needs to craft legislation on the sizing of campaign posters and other
paraphernalia with sufficient flexibility to address concerns inherent in the present fixed-dimension
model.
Brion, J., Dissenting Opinion:
Judicial Review; View that the petition prematurely availed of the Supreme Court’s (SC’s) power of
judicial review by openly disregarding established Commission on Elections (COMELEC) processes by
bypassing the comelec En Banc.—In my view, the petition prematurely availed of the Court’s power of
judicial review BY OPENLY DISREGARDING ESTABLISHED COMELEC PROCESSES BY
BYPASSING THE COMELEC EN BANC. This is a legal mortal sin that will sow havoc in future cases
before this Court. The petition consequently failed to show any prima facie case of grave abuse of
discretion on the part of the Comelec, as it had not yet finally decided on its course of action. Most
importantly, the issues the petition presents have now been MOOTED and do not now present any LIVE
CONTROVERSY. The Court will recall that we im-
17
VOL. 747, JANUARY 21, 2015 17
mediately issued a temporary restraining order to halt further Comelec action, so that the petitioner
was effectively the prevailing party when the elections — the critical time involved in this case — took
place. Subsequently, the interest advocated in the disputed tarpaulin was decided by this Court to the
satisfaction of the public at large, among them the Church whose right to life views prevailed. THESE
ARE CIRCUMSTANCES THAT SHOULD DISSUADE THIS COURT FROM RULING ON A CASE
THAT WEIGHS THE RIGHTS OF FREE SPEECH AND DEMOCRATIC ELECTORAL VALUES.
Same; View on Requirements of Justiciability.—Judicial review under the traditional jurisdiction of
the Court requires the following requirements of justiciability: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must have
the standing to question the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity;
and (4) the issue of constitutionality must be the very lis mota of the case. Failure to meet any of these
requirements justifies the Court’s refusal to exercise its power of judicial review under the Court’s
traditional power. The Court, however, has, in several instances, opted to relax one or more of these
requirements to give due course to a petition presenting issues of transcendental importance to the nation.
Same; Locus Standi; Transcendental Importance Doctrine; View that when the standing is relaxed
because of the transcendental importance doctrine, the character of the injury presented to fulfill the
actual case or controversy requirement is likewise tempered.—In these cases, the doctrine of
transcendental importance relaxes the standing requirement, and thereby indirectly relaxes the injury
embodied in the actual case or controversy requirement. Note at this point that an actual case or
controversy is present when the issues it poses are ripe for adjudication, that is, when the act being
challenged has had a direct adverse effect on the individual challenging it. Standing, on the other hand,
requires a personal and substantial interest manifested through a direct injury that the petitioner has or
will sustain as a result of the questioned act. Thus, when the stand-
18
ing is relaxed because of the transcendental importance doctrine, the character of the injury
presented to fulfill the actual case or controversy requirement is likewise tempered. When we, for
instance, say that the petitioners have no standing as citizens or as taxpayers but we nevertheless give the
petition due course, we indirectly acknowledge that the injury that they had or will sustain is not
personally directed towards them, but to the more general and abstract Filipino public.
Same; Political Questions; View that the political question doctrine prevents the Supreme Court
(SC) from deciding cases that are of a political nature, and leaves the decision to the elected officials of
government.—The political question doctrine prevents the Court from deciding cases that are of a
political nature, and leaves the decision to the elected-officials of government. In other words, the Court,
through the political question doctrine, defers to the judgment and discretion of the Executive and
Legislature, matters that involve policy because they are the people’s elected officials and hence are more
directly accountable to them.
Same; Same; View that the 1987 Constitution, recognizing the importance of the Supreme Court’s
(SC’s) active role in checking abuses in government, relaxed the political question doctrine and made it a
duty upon the Court to determine whether there had been abuses in the government’s exercise of
discretion and consequently nullify such actions that violate the Constitution albeit in the narrow and
limited instances of grave abuse of discretion.—The 1987 Constitution, recognizing the importance of the
Court’s active role in checking abuses in government, relaxed the political question doctrine and made it a
duty upon the Court to determine whether there had been abuses in the government’s exercise of
discretion and consequently nullify such actions that violate the Constitution albeit in the narrow and
limited instances of grave abuse of discretion. Thus, when a government agency’s exercise of discretion is
so grave as to amount to an excess or lack of jurisdiction, it becomes the duty to step in and check for
violations of the Constitution. In these instances, the political question doctrine cannot prevent the Court
from determining whether the government gravely abused its jurisdiction, against the back drop of the
Constitution.
19
VOL. 747, JANUARY 21, 2015 19
Same; Same; View that translated in terms of the Supreme Court’s (SC’s) expanded jurisdiction, the
actual case or controversy requirement is fulfilled by a prima facie showing of grave abuse of discretion.
—Translated in terms of the Court’s expanded jurisdiction, the actual case or controversy requirement is
fulfilled by a prima facie showing of grave abuse of discretion. This approach reflects the textual
requirement of grave abuse of discretion in the second paragraph of Article VIII, Section 1 of the 1987
Constitution. As I have earlier pointed out in my separate opinion in Araullo v. Aquino III, 728 SCRA 1
(2014), justiciability under the expanded judicial power expressly and textually depends only on the
presence or absence of grave abuse of discretion, as distinguished from a situation where the issue of
constitutional validity is raised within a “traditionally” justiciable case which demands that the
requirement of actual controversy based on specific legal rights must exist.
Commission on Elections; Jurisdiction; View that the constitutional grant to the Commission on
Elections (Comelec) of the power to investigate and to prosecute election offenses as an adjunct to the
enforcement and administration of all election laws is intended to enable the Comelec to effectively
ensure to the people the free, orderly, and honest conduct of elections.—The petition characterizes the
notices as administrative acts of the Comelec that are outside the latter’s jurisdiction to perform. The
Comelec’s administrative function refers to the enforcement and administration of election laws. Under
Section 2(6), Article IX-C of the Constitution, the Comelec is expressly given the power to “prosecute
cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and
malpractices.” The constitutional grant to the Comelec of the power to investigate and to prosecute
election offenses as an adjunct to the enforcement and administration of all election laws is intended to
enable the Comelec to effectively ensure to the people the free, orderly, and honest conduct of elections.
Judicial Review; Jurisdiction; Expanded Jurisdiction; View that the Supreme Court (SC) reviews
Commission on Elections’ (Comelec’s) administrative acts only by way of exception, when it acts
capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction.
Necessarily, this invokes the Court’s expanded jurisdiction under the second paragraph of Article VIII,
Section 1.—The Court reviews Comelec’s adminis-
20
trative acts only by way of exception, when it acts capriciously or whimsically, with grave abuse
of discretion amounting to lack or excess of jurisdiction. Necessarily, this invokes the Court’s expanded
jurisdiction under the second paragraph of Article VIII, Section 1. That there is an alleged grave abuse of
discretion on the part of Comelec, however, does not automatically mean that the petition should be given
due course. It has to meet the requirements of justiciability which, under the terms of the Court’s
expanded judicial power, has been translated to mean a prima facie showing of a governmental entity,
office or official granted discretionary authority to act and that this authority has been gravely abused.
There can be no prima facie showing of grave abuse of discretion unless something has already been
done or has taken place under the law and the petitioner sufficiently alleges the existence of a threatened
or immediate injury to itself as a result of the gravely abusive exercise of discretion.
Election Law; Preliminary Investigation; View that Commission on Elections (Comelec) Resolution
No. 9386 (Rules of Procedure in the Investigation and Prosecution of Election Offense Cases in the
COMELEC), in particular, provides that once a complaint is initiated, an investigating officer would
have to conduct a preliminary investigation to determine whether it warrants prosecution.—Comelec
Resolution No. 9386 (Rules of Procedure in the Investigation and Prosecution of Election Offense
Cases in the Commission on Elections), in particular, provides that once a complaint is initiated, an
investigating officer would have to conduct a preliminary investigation to determine whether it warrants
prosecution. At this stage, the respondent(s) to the complaint may submit his counter-affidavit and other
supporting documents for the complaint’s dismissal. The investigating officer may also hold a hearing to
propound clarificatory questions to the parties and their witnesses. The parties may even submit questions
to the investigating officer, which the latter may propound to the parties or parties or witnesses
concerned.
Moot and Academic; View that a case becomes moot and academic when there is no more actual
controversy between the parties, or no useful purpose can be served in passing upon the merits .—A
petition becomes moot and academic when it “ceases to present a justiciable controversy by virtue of
supervening events, so that a
21
VOL. 747, JANUARY 21, 2015 21
declaration thereon would be of no practical use or value.” A case becomes moot and academic
when there is no more actual controversy between the parties, or no useful purpose can be served in
passing upon the merits.
Judicial Review; View that after the Commission on Elections (Comelec) had been allowed to
exercise its jurisdiction to the fullest, judicial review of its actions may be availed of through a petition
for certiorari under the Rules of Court.—But while these issues are capable of repetition, they most
certainly cannot escape review. The administrative process outlined in Comelec Resolution No. 9615
provides a process through which the Comelec may decide these issues with finality. After the Comelec
had been allowed to exercise its jurisdiction to the fullest, judicial review of its actions may be availed of
through a petition for certiorari under the Rules of Court. At that point, the issues would certainly no
longer be premature.
Election Law; View that the content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in Republic Act (RA) No. 9006 and Commission on Elections (Comelec)
Resolution No. 9615.—The content of the tarpaulin, as well as the timing of its posting, makes it subject
of the regulations in RA 9006 and Comelec Resolution No. 9615. Comelec Resolution No. 9615 contains
rules and regulations implementing RA 9006 during the 2013 national elections. Section 3 of RA 9006
and Section 6 of Comelec Resolution No. 9615 seek to regulate election propaganda, defined in the latter
as: The term “political advertisement” or “election propaganda” refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo, brand,
insignia, color motif, initials, and other symbol or graphic representation that is capable of being
associated with a candidate or party, and is intended to draw the attention of the public or a segment
thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a
public office. In broadcast media, political advertisements may take the form of spots, appearances on TV
shows and radio programs, live or taped announcements, teasers, and other forms of advertising messages
or announcements used by commercial advertisers. Political advertising includes matters, not falling
within the scope of personal opinion, that appear on any Internet website, including, but not limited to,
social networks,
22
blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of
pecuniary estimation.
Same; Election Propaganda; View that had Congress intended to limit its definition of election
propaganda to materials posted for or in behalf of candidates, it could have so specified.—Had
Congress intended to limit its definition of election propaganda to materials posted for or in behalf
of candidates, it could have so specified. Notably, Section 9 on the Posting of Campaign Materials
indicates who the Comelec may authorize to erect common poster areas for campaign materials in public
places. It does not, as the ponencia makes it appear, limit the definition of election propaganda to those
posted by candidates and parties. The title of Section 9 uses the word “campaign materials” and not
election propaganda; thus, it refers to a particular type of election propaganda. Election
propaganda becomes a campaign material once it is used by candidates and political parties.
Nevertheless, the latter is different from the more generic term ‘election propaganda’ in the other
parts of RA 9006.
Same; Same; View that that the subject poster was posted on private property does not divest the
Commission on Elections (Comelec) of authority to regulate it.—That the subject poster was posted on
private property does not divest the Comelec of authority to regulate it. The law specifically recognizes
the posting of election propaganda on private property provided its owner consents to it. In the present
case, the property owner is the Diocese of Bacolod itself, and the posting of the subject poster was made
upon its own directive.
Same; Same; Content-Neutral Regulations; View that the assailed regulations in the present case
involve a content-neutral regulation that controls the incidents of speech. Both the notice and letter sent
by the Commission on Elections (Comelec) to the Diocese of Bacolod sought to enforce Section 3.3 of
Republic Act (RA) No. 9006 and Section 6(c) of Comelec Resolution No. 9615 which limits the size of
posters that contain election propaganda to not more than two (2) by three (3) feet. It does not prohibit
anyone from posting materials that contain election propaganda, so long as it meets the size limitations.
—Content-based regulations are viewed with a heavy presumption of unconstitutionality. Thus, the
government has the burden of showing that the regulation is narrowly tailored to meet a
23
VOL. 747, JANUARY 21, 2015 23
compelling state interest, otherwise, the Court will strike it down as unconstitutional. In
contrast, content-neutral regulations are not presumed unconstitutional. They pass constitutional
muster once they meet the following requirements: first, that the regulation is within the constitutional
power of the Government; second, that it furthers an important or substantial governmental interest; third,
that the governmental interest is unrelated to the suppression of free expression; and fourth, that the
incidental restriction on speech is no greater than is essential to further that interest. The assailed
regulations in the present case involve a content-neutral regulation that controls the incidents of
speech. Both the notice and letter sent by the Comelec to the Diocese of Bacolod sought to enforce
Section 3.3 of RA 9006 and Section 6(c) of Comelec Resolution No. 9615 which limits the size of posters
that contain election propaganda to not more than two by three feet. It does not prohibit anyone from
posting materials that contain election propaganda, so long as it meets the size limitations.
Constitutional Law; Freedom of Expression; View that Philippine jurisprudence has long settled
that the time, place, and manner of speech may be subject to Government regulation. Since the size of a
poster involves a time, place and manner regulation, then it may be the proper subject of a government
regulation.—Philippine jurisprudence has long settled that the time, place, and manner of speech may be
subject to Government regulation. Since the size of a poster involves a time, place and manner regulation,
then it may be the proper subject of a government regulation. That Congress may impose regulations on
the time place, and manner of speech during the election period is even implicitly recognized in Section 2,
paragraph 7, Article IX-C of the 1987 Constitution. Under this provision, the Comelec is empowered to
recommend to Congress effective measures to minimize election spending, including limitation of places
where propaganda materials shall be posted. That Congress can pass regulations regarding places where
propaganda materials may be posted necessarily indicates that it can also pass other content-neutral
regulations, such as the time and manner of the speech’s utterance.
Same; Same; View that freedom of expression, in the first place, is not the god of rights to which all
other rights and even government protection of state interest must bow.—Freedom of expression, in the
first place, is not the god of rights to which all other rights and even
24

government protection of state interest must bow. Speech rights are not the only important and
relevant values even in the most democratic societies. Our Constitution, for instance, values giving equal
opportunity to proffer oneself for public office, without regard to a person’s status, or the level of
financial resources that one may have at one’s disposal.
Same; Same; View that size limits to posters are necessary to ensure equality of public information
campaigns among candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters. This places candidates with more money and/or with
deep-pocket supporters at an undue advantage against candidates with more humble financial
capabilities.—Size limits to posters are necessary to ensure equality of public information campaigns
among candidates, as allowing posters with different sizes gives candidates and their supporters the
incentive to post larger posters. This places candidates with more money and/or with deep-pocket
supporters at an undue advantage against candidates with more humble financial capabilities. Notably, the
law does not limit the number of posters that a candidate, his supporter, or a private individual may post.
If the size of posters becomes unlimited as well, then candidates and parties with bigger campaign funds
could effectively crowd out public information on candidates with less money to spend to secure posters
— the former’s bigger posters and sheer number could effectively take the attention away from the
latter’s message. In the same manner, a lack of size limitations would also crowd out private, unaffiliated
individuals from participating in the discussion through posters, or at the very least, compel them to erect
bigger posters and thus spend more.
Perlas-Bernabe, J., Separate Concurring Opinion:
Constitutional Law; Freedom of Expression; Content-Neutral Regulation; View that a
governmental regulation is sufficiently justified if it is within the constitutional power of the Government,
if [(a)] it furthers an important or substantial governmental interest; [(b)] the governmental interest is
unrelated to the suppression of free expression; and [(c)] the incident restriction on alleged [freedom of
speech and expression] is no greater than is essential to the furtherance of that interest.—As
comprehensively explained in the seminal case of Chavez v. Gonzales, 545 SCRA 441 (2008), “[w]hen
the speech
25
VOL. 747, JANUARY 21, 2015 25
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 significant governmental interest that is unrelated to the
suppression of expression. The intermediate approach has [thus] been formulated in this manner: A
governmental regulation is sufficiently justified if it is within the constitutional power of the Government,
if [(a)] it furthers an important or substantial governmental interest; [(b)] the governmental interest
is unrelated to the suppression of free expression; and [(c)] the incident restriction on alleged [freedom of
speech and expression] is no greater than is essential to the furtherance of that interest.”
Same; Same; Same; View that 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.—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.
Same; Same; View that while the Commission on Elections’ (COMELEC’s) regulatory powers
ought to be recognized, personal advocacies pertaining to relevant social issues by a private entity within
its own private property ought to fall beyond that broad authority, lest we stifle the value of a core liberty.
—Considering the totality of the factors herein detailed, and equally bearing in mind the discussions
made in Adiong v. COMELEC, 207 SCRA 712 (1992), I submit that the COMELEC issuances subject of
this case do not satisfy the substantial governmental interest requisite and, hence, fail the intermediate
scrutiny test. Surely, while the COMELEC’s regulatory powers ought to be recognized, personal
advocacies per-
26
taining to relevant social issues by a private entity within its own private property ought to fall
beyond that broad authority, lest we stifle the value of a core liberty.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Prohibition.
The facts are stated in the opinion of the Court.
Ralph A. Sarmiento, Raymundo T. Pandan, Jr. and Michelle M. Abella for petitioners.

LEONEN, J.:

“The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them.” — Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections. It is
significant and of first impression. We are asked to decide whether the Commission on Elections
(COMELEC) has the competence to limit expressions made by the citizens — who are not
candidates — during elections.
Before us is a special civil action for certiorari and prohibition with application for
preliminary injunction and temporary restraining order1 under Rule 65 of the Rules of Court
seeking to nullify COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013
and letter3 issued on February 27, 2013.
_______________
1 Rollo, pp. 3-8.

2 Id., at p. 19.
27
VOL. 747, JANUARY 21, 2015 27
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound
housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6’)
by ten feet (10’) in size. They were posted on the front walls of the cathedral within public view.
The first tarpaulin contains the message “IBASURA RH Law” referring to the Reproductive
Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the
present case.4
This tarpaulin contains the heading “Conscience Vote” and lists candidates as either “(Anti-
RH) Team Buhay” with a check mark, or “(Pro-RH) Team Patay” with an “X” mark.5 The
electoral candidates were classified according to their vote on the adoption of Republic Act No.
10354, otherwise known as the RH Law.6 Those who voted for the passing of the law were
classified by petitioners as comprising “Team Patay,” while those who voted against it form
“Team Buhay”:7

_______________
3 Id., at p. 23.
4 Id., at p. 6.
5 Id., at p. 155.
6 Id., at pp. 6-7.
7 Id.
28

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor
paid for by any candidate. Petitioners also conceded that the tarpaulin contains names of
candidates for the 2013 elections, but not of politicians who helped in the passage of the RH Law
but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election
Officer of Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner
Most Rev. Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal
within three (3) days from receipt for being oversized. COMELEC Resolution No. 9615 provides
for the size requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner
Bishop be given a definite ruling by COMELEC Law Department regarding the tarpaulin; and
(2) pending this opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter 12 ordering the immediate
removal of the tarpaulin; otherwise, it will be constrained to file an election offense against
petitioners. The letter of COMELEC Law Department was silent on the remedies available to
petitioners. The letter provides as follows:
_______________
8 Id., at p. 19.
9 See COMELEC Resolution No. 9615 (2013), Sec. 6(c).
10 Rollo, pp. 20-22.
11 Id., at p. 21.
12 Id., at p. 23.
29
VOL. 747, JANUARY 21, 2015 29
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the church
vicinity promoting for or against the candidates and party list groups with the following names and
messages, particularly described as follows:
The three (3)-day notice expired on February 25, 2013.

Considering that the above mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of the
said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by three
feet (3’), please order/cause the immediate removal of said election propaganda material, otherwise, we
shall be constrained to file an election offense case against you.
We pray that the Catholic Church will be the first institution to help the Commission on Elections in
ensuring the conduct of peaceful, orderly, honest and credible elections.
Thank you and God Bless!
30
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV 13

Concerned about the imminent threat of prosecution for their exercise of free speech,
petitioners initiated this case through this petition for certiorari and prohibition with application
for preliminary injunction and temporary restraining order.14 They question respondents’ notice
dated February 22, 2013 and letter issued on February 27, 2013. They pray that: (1) the petition
be given due course; (2) a temporary restraining order (TRO) and/or a writ of preliminary
injunction be issued restraining respondents from further proceeding in enforcing their orders for
the removal of the Team Patay tarpaulin; and (3) after notice and hearing, a decision be rendered
declaring the questioned orders of respondents as unconstitutional and void, and permanently
restraining respondents from enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order
enjoining respondents from enforcing the assailed notice and letter, and set oral arguments on
March 19, 2013.16
On March 13, 2013, respondents filed their comment 17 arguing that (1) a petition
for certiorari and prohibition under Rule 65 of the Rules of Court filed before this court is not
the proper remedy to question the notice and letter of respondents; and (2) the tarpaulin is an
election propaganda subject to regulation by COMELEC pursuant to its mandate under Article
IX-C, Section 4 of the Constitution. Hence, respon-
_______________
13 Id.
14 Id., at pp. 15-16.
15 Id., at p. 16.
16 Id., at p. 24.
31
VOL. 747, JANUARY 21, 2015 31
dents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening
holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT
ARE CONSIDERED JUDGMENTS/
FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF
THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE AND
JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT
CONSIDERED JUDGMENTS/
FINAL ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE
CASE[;]
_______________
17 Id., at pp. 32-49.

18 Id., at p. 35.
19 Id., at p. 50C.
20 Id., at pp. 94-96.
32
II.
WHETHER IT IS RELEVANT TO DETERMINE WHETHER THE TARPAULINS ARE
“POLITICAL ADVERTISEMENT” OR “ELECTION PROPAGANDA” CONSIDERING THAT
PETITIONER IS NOT A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR
ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION,
WHETHER THE COMELEC POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT
VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES
THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.
I

PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
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VOL. 747, JANUARY 21, 2015 33
Respondents ask that this petition be dismissed on the ground that the notice and letter are not
final orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of
its adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the ouster of
jurisdiction.22 As a special civil action, there must also be a showing that there be no plain,
speedy, and adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is “limited only to final decisions, rulings and orders of the
COMELEC En Banc rendered in the exercise of its adjudicatory or quasi-judicial
power.”23 Instead, respondents claim that the assailed notice and letter are reviewable only by
COMELEC itself pursuant to Article IX-C, Section 2(3) of the Constitution 24 on COMELEC’s
power to decide all questions affecting elections.25 Respondents invoke the cases of Ambil, Jr. v.
COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
_______________
21 Id., at pp. 62-64.

22 See Macabago v. Commission on Elections, 440 Phil. 683, 690-692; 392 SCRA 178, 183 (2002) [Per J. Callejo,
Sr., En Banc].
23 Rollo, p. 63.
24 Const., Art. IX-C, Sec. 2(3):
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the
number and location of polling places, appointment of election officials and inspectors, and registration of voters.
25 Rollo, p. 64.
26 398 Phil. 257; 344 SCRA 358 (2000) [Per J. Pardo, En Banc].
27 G.R. No. 161418, April 28, 2004, 428 SCRA 321 [Per J. Carpio, En Banc].
34
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how judicial
intervention is limited to final decisions, orders, rulings and judgments of the COMELEC En
Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed
the election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution] to mean final orders, rulings and
34
decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.” This
decision must be a final decision or resolution of the Comelec En Banc, not of a division, certainly not an
interlocutory order of a division. The Supreme Court has no power to review via certiorari, an
interlocutory order or even a final resolution of a Division of the Commission on Elections. (Emphasis in 35
the original, citations omitted)
_______________
28 548 Phil. 639; 520 SCRA 88 (2007) [Per J. Carpio, En Banc].

29 577 Phil. 622; 554 SCRA 755 (2008) [Per J. Azcuna, En Banc].
30 G.R. No. 193846, April 12, 2011, 648 SCRA 561 [Per J. Nachura, En Banc].
31 Rollo, p. 64.
32 Ambil, Jr. v. Commission on Elections, supra note 26 at p. 271; p. 367.
33 Id., at pp. 271-272; p. 367.
34 Sec. 7. . . . Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of
a copy thereof.
35 Ambil, Jr. v. Commission on Elections, supra at p. 274; pp. 365-366.
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However, in the next case cited by respondents, Repol v. COMELEC, this court provided
exceptions to this general rule. Repol was another election protest case, involving the mayoralty
elections in Pagsanghan, Samar.36 This time, the case was brought to this court because the
COMELEC First Division issued a status quo ante order against the Regional Trial Court
executing its decision pending appeal.37 This court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
COMELEC Division.38 However, consistent with ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set aside
is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available. 40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in
electoral contests — despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
_______________
36 Repol v. COMELEC, supra note 27 at p. 322.

37 Id., at p. 325.
38 Id., at p. 330.
39 380 Phil. 780; 323 SCRA 811 (2000) [Per J. Panganiban, En Banc].
40 Repol v. Commission on Elections, supra at p. 330, citing ABS-CBN v. Commission on Elections, id., at pp. 789-
790; p. 820.
36
4) The decision or resolution sought to be set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.

Ultimately, this court took jurisdiction in Repol and decided that the status quo ante order
issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC. This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr. filed
before this court a petition for certiorari against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division dismissed
the main election protest case.43 Soriano applied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to
the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of
the mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case
that he engaged in vote buying in the 1995 elections. 46 No motion for reconsideration was filed
before the COMELEC En Banc. This court, however, took cognizance of this case applying one
of the
_______________
41 Soriano, Jr. v. Commission on Elections, supra note 28 at p. 89.

42 Id., at p. 643; p. 91.
43 Id.
44 Id., at p. 656; p. 105.
45 Blanco v. Commission on Elections, supra note 29 at p. 627; p. 758.
46 Id.
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exceptions in ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving
the mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC
denying her motion for reconsideration to dismiss the election protest petition for lack of form
and substance.49 This court clarified the general rule and refused to take cognizance of the review
of the COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that
these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not
operate as precedents to oust this court from taking jurisdiction over this case. All these
cases cited involve election protests or disqualification cases filed by the losing candidate
against the winning candidate.
In the present case, petitioners are not candidates seeking for public office. Their
petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the
implementation of its regulatory powers. When it issued the notice and letter, the COMELEC
was allegedly enforcing election laws.
_______________
47 Id., at p. 630; p. 761.

48 Cayetano v. Commission on Elections, supra note 30 at p. 563.
49 Id., at p. 566.
50 Id., at p. 571.
38
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech

The main subject of this case is an alleged constitutional violation: the infringement on
speech and the “chilling effect” caused by respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the notice51 dated February 22, 2013 and letter52 dated February
27, 2013 ordering the removal of the tarpaulin.53 It is their position that these infringe on their
fundamental right to freedom of expression and violate the principle of separation of church and
state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the allegations in the
petition. Subject matter jurisdiction is defined as the authority “to hear and determine cases of
the general class to which the proceedings in question belong and is conferred by the sovereign
authority which organizes the court and defines its powers.”55 Definitely, the subject matter in
this case is different from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by the restrictions imposed
by COMELEC. 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
_______________
51 Rollo, p. 19.
52 Id., at p. 23.
53 Id., at pp. 3-4.
54 Id., at pp. 8-9.
55 Reyes v. Diaz, 73 Phil. 484, 486 (1941) [Per J. Moran, En Banc].
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VOL. 747, JANUARY 21, 2015 39
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 define the quality of deliberation in our democratic
society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of
repetition. Under the conditions in which it was issued and in view of the novelty of this case, it
could result in a “chilling effect” that would affect other citizens who want their voices heard on
issues during the elections. Other citizens who wish to express their views regarding the election
and other related issues may choose not to, for fear of reprisal or sanction by the COMELEC.
Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is also the
procedural platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to
this court’s expanded exercise of certiorari as provided by the Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)
56

On the other hand, respondents relied on its constitutional mandate to decide all
questions affecting elections. Article IX-C, Section 2(3) of the Constitution, provides:
_______________
56 Const., Art. VIII, Sec. 1, par. (2).

40
....
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the
COMELEC had any jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and
letter on free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The
use of the word “affecting” in this provision cannot be interpreted to mean that COMELEC has
the exclusive power to decide any and all questions that arise during elections. COMELEC’s
constitutional competencies during elections should not operate to divest this court of its own
jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution. This provision provides for this court’s original jurisdiction over petitions
for certiorari and prohibition. This should be read alongside the expanded jurisdiction of the
court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of
discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within
this court’s power to review.
41
VOL. 747, JANUARY 21, 2015 41
During elections, we have the power and the duty to correct any grave abuse of discretion or
any act tainted with unconstitutionality on the part of any government branch or instrumentality.
This includes actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to
protect the people against government’s infringement of their fundamental rights. This
constitutional mandate outweighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C
Hierarchy of Courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts
in directly filing their petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a lower court of
concurrent jurisdiction is sufficient ground for the dismissal of their petition.57 They add that
observation of the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions to the general rule on
hierarchy of courts, none of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to
take cognizance of a petition filed directly to it if warranted by “compelling reasons, or [by] the
nature and importance of the issues raised. . . .”61
_______________
57 Rollo, p. 66.
58 495 Phil. 422, 432; 455 SCRA 460, 470 (2005) [Per J. Austria-Martinez, Second Division].
59 Rollo, p. 67.
60 352 Phil. 461; 298 SCRA 679 (1998) [Per J. Martinez, Second Division].
61 Id., at p. 480; pp. 690-91; Rollo, p. 99.
42
Petitioners submit that there are “exceptional and compelling reasons to justify a direct resort
[with] this Court.”62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is designed to
shield the Court from having to deal with causes that are also well within the competence of the lower
courts, and thus leave time to the Court to deal with the more fundamental and more essential tasks that
the Constitution has assigned to it. The Court may act on petitions for the extraordinary writs
of certiorari, prohibition and mandamus only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy. 64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs
of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not be
burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-
called extraordinary writs should be exercised only where absolutely necessary or where serious and
important reasons exist therefore. Hence, that jurisdiction should generally be exercised relative to actions
or proceedings before the
_______________
62 Rollo, p. 100.
63 G.R. No. 159508, August 29, 2012, 679 SCRA 237 [Per J. Bersamin, First Division].
64 Id., at p. 250.
65 240 Phil. 719; 156 SCRA 753 (1987) [Per J. Narvasa, First Division].
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VOL. 747, JANUARY 21, 2015 43

Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some
reason or another are not controllable by the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either of
these courts that the specific action for the writ’s procurement must be presented. This is and should
continue to be the policy in this regard, a policy that courts and lawyers must strictly observe. (Emphasis
66
omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to
ensure that every level of the judiciary performs its designated roles in an effective and efficient
manner. Trial courts do not only determine the facts from the evaluation of the evidence
presented before them. They are likewise competent to determine issues of law which may
include the validity of an ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially organized into regions
and then into branches. Their writs generally reach within those territorial boundaries.
Necessarily, they mostly perform the all-important task of inferring the facts from the evidence
as these are physically presented before them. In many instances, the facts occur within their
territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a determination of
the constitutionality of such action. The consequences, of course, would be national in scope.
There are, however, some cases where resort to courts at their level would not be practical
considering their deci-
_______________
66 Id., at pp. 732-733; p. 766.

67 Ynot v. Intermediate Appellate Court, 232 Phil. 615, 621; 148 SCRA 659, 666 (1987) [Per J. Cruz, En Banc].
See J.M. Tuason & Co., Inc. v. Court of Appeals, 113 Phil. 673, 681; 3 SCRA 696, 703 (1961) [Per J. J.B.L. Reyes, En
Banc]; Espiritu v. Fugoso, 81 Phil. 637, 639 (1948) [Per J. Perfecto, En Banc].
44
sions could still be appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews the
determination of facts and law made by the trial courts. It is collegiate in nature. This nature
ensures more standpoints in the review of the actions of the trial court. But the Court of Appeals
also has original jurisdiction over most special civil actions. Unlike the trial courts, its writs can
have a nationwide scope. It is competent to determine facts and, ideally, should act on
constitutional issues that may not necessarily be novel unless there are factual questions to
determine.
This court, on the other hand, leads the judiciary by breaking new ground or further
reiterating — in the light of new circumstances or in the light of some confusions of bench or bar
— existing precedents. Rather than a court of first instance or as a repetition of the actions of the
Court of Appeals, this court promulgates these doctrinal devices in order that it truly performs
that role.
In other words, the Supreme Court’s role to interpret the Constitution and act in order to
protect constitutional rights when these become exigent should not be emasculated by the
doctrine in respect of the hierarchy of courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule. 68 This court has “full
discretionary power to take cognizance and assume jurisdiction [over] special civil actions
for certiorari . . . filed directly with it for exceptionally compelling reasons69 or if warranted by
the nature of the issues clearly
_______________
68 Roque, Jr. v. COMELEC, 615 Phil. 149, 201; 599 SCRA 69, 112 (2009) [Per J. Velasco, Jr., En Banc].
69 Id., citing Chavez v. National Housing Authority, 557 Phil. 29, 72; 530 SCRA 235, 286 (2007) [Per J. Velasco,
Jr., En Banc].
45
VOL. 747, JANUARY 21, 2015 45
and specifically raised in the petition.”70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of constitutionality
that must be addressed at the most immediate time. A direct resort to this court includes availing
of the remedies of certiorari and prohibition to assail the constitutionality of actions of both
legislative and executive branches of the government.72
In this case, the assailed issuances of respondents prejudice not only petitioners’ right to
freedom of expression in the present case, but also of others in future similar cases. The case
before this court involves an active effort on the part of the electorate to reform the political
landscape. This has become a rare occasion when private citizens actively engage the public in
political discourse. To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of
life. The theory grew out of an age that was awakened and invigorated by the idea of new society in
which man’s mind was free, his fate determined by his own powers of reason, and his prospects of
creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for
attaining a creative, progressive, exciting and in-
_______________
70 Id., at p. 201; pp. 112-113, citing Cabarles v. Maceda, 545 Phil. 210, 224; 516 SCRA 303, 321 (2007)
[Per J. Quisumbing, Second Division].
71 The counsels for petitioners are Atty. Ralph A. Sarmiento, Atty. Raymundo T. Pandan, Jr., and Atty. Mitchelle M.
Abella.
72 See Aquino III v. COMELEC, G.R. No. 189793, April 7, 2010, 617 SCRA 623, 637-638 [Per J. Perez, En
Banc]; Magallona v. Ermita, G.R. No. 187167, August 16, 2011, 655 SCRA 476, 487-488 [Per J. Carpio, En Banc].
46
tellectually robust community. It contemplates a mode of life that, through encouraging toleration,
skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative
of a society that is tyrannical, conformist, irrational and stagnant. 73

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.
A second exception is when the issues involved are of transcendental importance.74 In these
cases, the imminence and clarity of the threat to fundamental constitutional rights outweigh the
necessity for prudence. The doctrine relating to constitutional issues of transcendental
importance prevents courts from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom of
speech and freedom of expression which warrants invocation of relief from this court. The
principles laid down in this decision will likely influence the discourse of freedom of speech in
the future, especially in the context of elections. The right to suffrage not only includes
_______________
73 Thomas I. Emerson, Toward a General Theory of the First Amendment, Faculty Scholarship Series, Paper 2796
(1963), cited in Gonzales v. COMELEC, 137 Phil. 471, 493-494; 27 SCRA 835, 858 (1969) [Per J. Fernando, En Banc].
74 See Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC.) v. Power
Sector Assets and Liabilities Management Corporation (PSALM), G.R. No. 192088, October 9, 2012, 682 SCRA 602, 633
[Per J. Villarama, Jr., En Banc]; Agan, Jr. v. PIATCO, 450 Phil. 744, 805; 402 SCRA 612, 646 (2003) [Per J. Puno, En
Banc].
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VOL. 747, JANUARY 21, 2015 47
the right to vote for one’s chosen candidate, but also the right to vocalize that choice to the
public in general, in the hope of influencing their votes. It may be said that in an election year,
the right to vote necessarily includes the right to free speech and expression. The protection of
these fundamental constitutional rights, therefore, allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first
impression, no jurisprudence yet exists that will guide the lower courts on this matter.
In Government of the United States v. Purganan,76 this court took cognizance of the case as a
matter of first impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a matter
of first impression over which there is, as yet, no local jurisprudence to guide lower courts. 77

This court finds that this is indeed a case of first impression involving as it does the issue of
whether the right of suffrage includes the right of freedom of expression. This is a question
which this court has yet to provide substantial answers to, through jurisprudence. Thus, direct
resort to this court is allowed.
_______________
75 See Soriano v. Laguardia, 605 Phil. 43, 99; 587 SCRA 79, 102 (2009) [Per J. Velasco, Jr., En Banc]; See
also Mallion v. Alcantara, 536 Phil. 1049, 1053; 506 SCRA 336, 341 (2006) [Per J. Azcuna, Second Division].
77 Id., at p. 439; pp. 651-652.
48
Fourth, the constitutional issues raised are better decided by this court. In Drilon v. Lim,78 this
court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgment of this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated in its
discussion. (Citation omitted)
79

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule
with finality on whether COMELEC committed grave abuse of discretion or performed acts
contrary to the Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed during
the 2013 election period. Although the elections have already been concluded, future cases may
be filed that necessitate urgency in its resolution. Exigency in certain situations would qualify as
an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held that “[i]t is easy to
realize the chaos that would ensue if the Court of First Instance of each and every province were
[to] arrogate itself the power to disregard, suspend, or contradict any order of the Commission on
Elections: that constitutional body would be speedily reduced to impotence.”81
_______________
78 G.R. No. 112497, August 4, 1994, 235 SCRA 135 [Per J. Cruz, En Banc].
79 Id., at p. 140.
80 114 Phil. 318; 4 SCRA 386 (1962) [Per J. J.B.L. Reyes, En Banc].
81 Id., at p. 322; p. 389.
49
VOL. 747, JANUARY 21, 2015 49
In this case, if petitioners sought to annul the actions of COMELEC through pursuing
remedies with the lower courts, any ruling on their part would not have been binding for other
citizens whom respondents may place in the same situation. Besides, this court affords great
respect to the Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling
by this court would be in the best interest of respondents, in order that their actions may be
guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy
in the ordinary course of law that could free them from the injurious effects of respondents’ acts
in violation of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other
sufficient remedies in the course of law alone is sufficient ground to allow direct resort to this
court.
Eighth, the petition includes questions that are “dictated by public welfare and the
advancement of public policy, or demanded by the broader interest of justice, or the orders
complained of were found to be patent nullities, or the appeal was considered as clearly an
inappropriate remedy.”82 In the past, questions similar to these which this court ruled on
immediately despite the doctrine of hierarchy of courts included citizens’ right to bear
arms,83 government contracts
_______________
82 Chong v. Dela Cruz, 610 Phil. 725, 728; 593 SCRA 311, 314 (2009) [Per J. Nachura, Third Division],
citing Gelindon v. De la Rama, G.R. No. 105072, December 9, 1993, 228 SCRA 322, 326-327 [Per J. Vitug, Third
Division].
83 Chavez v. Romulo, G.R. No. 157036, June 9, 2004, 431 SCRA 534 [Per J. Sandoval-Gutierrez, En Banc].
50
involving modernization of voters’ registration lists,84 and the status and existence of a public
office.85
This case also poses a question of similar, if not greater import. Hence, a direct action to this
court is permitted.
It is not, however, necessary that all of these exceptions must occur at the same time to justify
a direct resort to this court. While generally, the hierarchy of courts is respected, the present case
falls under the recognized exceptions and, as such, may be resolved by this court directly.

I.D
The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political
question, hence not within the ambit of this court’s power of review. They cite Justice Vitug’s
separate opinion in Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the “State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be
defined by law.” I see neither Article IX(C)(4) nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free expression. In any event, the latter, being
one of general application, must yield to the specific demands of the Constitution. The freedom of
expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-
_______________
84 COMELEC v. Quijano-Padilla, 438 Phil. 72; 389 SCRA 353 (2002) [Per J. Sandoval-Gutierrez, En Banc].
85 Buklod ng Kawaning EIIB v. Zamora, 413 Phil. 281; 360 SCRA 718 (2001) [Per J. Sandoval-Gutierrez, En Banc].
86 351 Phil. 692; 288 SCRA 447 (1998) [Per J. Mendoza, En Banc].
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enshrined rights but, like all fundamental rights, it is not without limitations.
The case is not about a fight between the “rich” and the “poor” or between the “powerful” and the
“weak” in our society but it is to me a genuine attempt on the part of Congress and the Commission on
Elections to ensure that all candidates are given an equal chance to media coverage and thereby be
equally perceived as giving real life to the candidates’ right of free expression rather than being viewed as
an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that which the
legislature deems to be best in giving life to the Constitutional mandate, is not for the Court to question; it
is a matter that lies beyond the normal prerogatives of the Court to pass upon. 87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.
The present petition does not involve a dispute between the rich and poor, or the powerful and
weak, on their equal opportunities for media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are noncandidates, to post the
tarpaulin in their private property, as an exercise of their right of free expression. Despite the
invocation of the political question doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a
political question:
What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the gov-
_______________
87 Id., at pp. 727-728; pp. 487-488, Separate Opinion of J. Vitug.

88 103 Phil. 1051 (1957) [Per J. Concepcion, En Banc].
52
ernment, with discretionary power to act. (Emphasis omitted)
89

It is not for this court to rehearse and reenact political debates on what the text of the law
should be. In political forums, particularly the legislature, the creation of the text of the law is
based on a general discussion of factual circumstances, broadly construed in order to allow for
general application by the executive branch. Thus, the creation of the law is not limited by
particular and specific facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts established on
a specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.
The complementary nature of the political and judicial branches of government is essential in
order to ensure that the rights of the general public are upheld at all times. In order to preserve
this balance, branches of government must afford due respect and deference for the duties and
functions constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule.
Prudence dictates that we are careful not to veto political acts unless we can craft doctrine
narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty. There is no
political question. It can be acted upon by this court through the expanded jurisdiction granted to
this court through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or competence of
different agencies and departments of the executive or those of the legislature. The political
question doctrine is used as a defense when the petition asks this court to nullify certain acts that
are exclusively
_______________
89 Id., at p. 1067.
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within the domain of their respective competencies, as provided by the Constitution or the
law. In such situation, presumptively, this court should act with deference. It will decline to void
an act unless the exercise of that power was so capricious and arbitrary so as to amount to grave
abuse of discretion.
The concept of a political question, however, never precludes judicial review when the act of
a constitutional organ infringes upon a fundamental individual or collective right. Even
assuming arguendo that the COMELEC did have the discretion to choose the manner of
regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to
expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature or by law is for the
latter alone to decide. 91

How this court has chosen to address the political question doctrine has undergone an
evolution since the time that it had been first invoked in Marcos v. Manglapus. Increasingly, this
court has taken the historical and social context of the case and the relevance of pronouncements
of carefully and narrowly tailored constitutional doctrines. This trend was
_______________
90 258 Phil. 479; 177 SCRA 668 (1989) [Per J. Cortes, En Banc].

91 Id., at pp. 506-507; p. 696.
54
followed in cases such as Daza v. Singson92 and Coseteng v. Mitra, Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the
1987 Constitution involving the removal of petitioners from the Commission on Appointments.
In times past, this would have involved a quintessentially political question as it related to the
dominance of political parties in Congress. However, in these cases, this court exercised its
power of judicial review noting that the requirement of interpreting the constitutional provision
involved the legality and not the wisdom of a manner by which a constitutional duty or power
was exercised. This approach was again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible
existence of a political question did not bar an examination of whether the exercise of discretion
was done with grave abuse of discretion. In that case, this court ruled on the question of whether
there was grave abuse of discretion in the President’s use of his power to call out the armed
forces to prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former
President resigned was not a political question even if the consequences would be to ascertain
the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional
_______________
92 259 Phil. 980; 180 SCRA 496 (1989) [Per J. Cruz, En Banc].

93 G.R. No. 86649, July 12, 1990, 187 SCRA 377 [Per J. Griño-Aquino, En Banc].
95 392 Phil. 618; 338 SCRA 81 (2000) [Per J. Kapunan, En Banc].
96 406 Phil. 1; 353 SCRA 452 (2001) [Per J. Puno, En Banc].
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issues as leverage. But the expanded jurisdiction of this court now mandates a duty for it to
exercise its power of judicial review expanding on principles that may avert catastrophe or
resolve social conflict.
This court’s understanding of the political question has not been static or unbending.
In Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President’s discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or whether said powers are within the limits
prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such
review does not constitute a modification or correction of the act of the President, nor does it constitute
interference with the functions of the President. 98

The concept of judicial power in relation to the concept of the political question was
discussed most extensively in Francisco v. HRET.99 In this case, the House of Representatives
argued that the question of the validity of the second impeachment complaint that was filed
against former Chief Justice Hilario Davide was a political question beyond the ambit of this
court. Former Chief Justice Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power
_______________
97 279 Phil. 920; 202 SCRA 844 (1991) [Per J. Paras, En Banc].

98 Id., at p. 934; pp. 854-855.
99 460 Phil. 830; 415 SCRA 44 (2003) [Per J. Carpio-Morales, En Banc].
56

as including “the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.” As well observed by retired Justice Isagani Cruz, this expanded definition of judicial
power considerably constricted the scope of political question. He opined that the language luminously
suggests that this duty (and power) is available even against the executive and legislative departments
including the President and the Congress, in the exercise of their discretionary powers. (Emphasis in the
100
original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as
applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the
political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:
The “allocation of constitutional boundaries” is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, “(t)he political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that
_______________
100 Id., at p. 1103; pp. 201-202, Concurring and Dissenting Opinion of J. Puno.

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obligation mandated by the 1987 Constitution, although said provision by no means does away with
the applicability of the principle in appropriate cases.” (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature, we
would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political question. x x x (Emphasis and italics supplied)
....
In our jurisdiction, the determination of whether an issue involves a truly political and nonjusticiable
question lies in the answer to the question of whether there are constitutionally imposed limits on powers
or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine
whether the branch or instrumentality of the government properly acted within such limits. (Citations
101
omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence,
the existence of constitutionally imposed limits justifies subjecting the official actions of the
body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any
instance that this right may be abridged demands judicial scrutiny. It does not fall squarely into
any doubt that a political question brings.
_______________
101 Id., at pp. 910-912; pp. 150-151.

58
I.E
Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative
remedies. Respondents insist that petitioners should have first brought the matter to the
COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule 65 that
“there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law.”103 They add that the proper venue to assail the validity of the assailed issuances was in the
course of an administrative hearing to be conducted by COMELEC.104 In the event that an
election offense is filed against petitioners for posting the tarpaulin, they claim that petitioners
should resort to the remedies prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy
is already ripe for adjudication. Ripeness is the “prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture.”106
Petitioners’ exercise of their right to speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the
filing of the election offense against petitioners is already an
_______________
102 Rollo, p. 37.
103 Rules of Court, Rule 65, Sec. 1.
104 Rollo, p. 65.
105 Id.
106 Tan v. Macapagal, 150 Phil. 778, 784; 43 SCRA 677; 681 (1972) [Per J. Fernando, En Banc].
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actionable infringement of this right. The impending threat of criminal litigation is enough to
curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC
suggested in their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: “[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.”108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental
right.
Even assuming that the principle of exhaustion of administrative remedies is applicable, the
current controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when the
issue involved is purely a legal question; (c) when the administrative action is patently illegal amounting
to lack or excess of jurisdiction; (d) when there is estoppel on the part of the administrative agency
concerned; (e) when there is irreparable injury; (f) when the respondent is a department secretary whose
acts as an alter ego of the President bear the implied and assumed approval of the lat-
_______________
107 569 Phil. 155; 545 SCRA 441 (2008) [Per CJ. Puno, En Banc].

108 Id., at p. 245; pp. 538-539, Separate Concurring Opinion of J. Carpio.
109 Const., Preamble.
110 614 Phil. 416; 598 SCRA 229 (2009) [Per J. Brion, Second Division].
60
ter; (g) when to require exhaustion of administrative remedies would be unreasonable; (h) when it
would amount to a nullification of a claim; (i) when the subject matter is a private land in land case
proceedings; (j) when the rule does not provide a plain, speedy and adequate remedy; or (k) when there
are circumstances indicating the urgency of judicial intervention.” (Emphasis supplied, citation omitted)
111

The circumstances emphasized are squarely applicable with the present case. First, petitioners
allege that the assailed issuances violated their right to freedom of expression and the principle
of separation of church and state. This is a purely legal question. Second, the circumstances of
the present case indicate the urgency of judicial intervention considering the issue then on the
RH Law as well as the upcoming elections. Thus, to require the exhaustion of administrative
remedies in this case would be unreasonable.
Time and again, we have held that this court “has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or when the purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court.”112 Certainly, this
_______________
111 Id., at pp. 425-426; p. 238.

112 Tiangco v. Land Bank of the Philippines, G.R. No. 153998, October 6, 2010, 632 SCRA 256, 271 [Per J. Peralta,
Second Division], quoting Heirs of Villagracia v. Equitable Banking Corporation, 573 Phil. 212, 221; 550 SCRA 60, 69
(2008) [Per J. Nachura, Third Division]: “The rules of procedure ought not to be applied in a very rigid and technical
sense, for they have been adopted to help secure, not override, substantial justice. Judicial action must be guided by the
principle that a party-litigant should be given the fullest opportunity to establish the merits of his complaint or defense
rather than for him to lose life, liberty, honor or property on technicalities. When a rigid application of the rules tends to
frustrate rather than promote substantial justice, this Court is empowered to suspend their operation.”
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case of first impression where COMELEC has threatened to prosecute private parties who
seek to participate in the elections by calling attention to issues they want debated by the public
in the manner they feel would be effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A
COMELEC had no legal basis
to regulate expressions
made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they
had the power to regulate the tarpaulin. 113 However, all of these provisions pertain to candidates
and political parties. Petitioners are not candidates. Neither do they belong to any political party.
COMELEC does not have the authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a noncandidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned or -
controlled corporation or its subsidi-
_______________
113 Rollo, pp. 70-71, 74, and 82-83.

62
ary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for public information campaigns and
forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections. (Emphasis supplied)
114

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite
for the creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad
questioned the provision prohibiting journalists from covering plebiscite issues on the day before
and on plebiscite day.117 Sanidad argued that the prohibition was a violation of the “constitutional
guarantees of the freedom of expression and of the press. . . .” 118 We held that the “evil sought to
be prevented by this provision is the possibility that a franchise holder may favor or give any
undue advantage to a candidate in terms of advertising space or radio or television time.” 119 This
court found that “[m]edia practitioners exercising their freedom of expression during plebiscite
periods are neither the franchise
_______________
114 See Rep. Act No. 9006 (2001), Sec. 2.

Sec. 2. Declaration of Principles.—The State shall, during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of media of communication or information to guarantee or
ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for
public information campaigns and fora among candidates and assure free, orderly, honest[,] peaceful and credible
elections.
The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and
discrimination.
115 260 Phil. 565; 181 SCRA 529 (1990) [Per J. Medialdea, En Banc].
116 Id., at p. 567; p. 530.
117 Id.
118 Id.
119 Id., at p. 570; pp. 533-534.
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holders nor the candidates[,]”120 thus, their right to expression during this period may not be
regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders nor
candidates.

II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
....
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms
of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)

Based on the enumeration made on acts that may be penalized, it will be inferred that this
provision only affects candidates.
Petitioners assail the “Notice to Remove Campaign Materials” issued by COMELEC. This
was followed by the assailed letter regarding the “election propaganda material posted on the
church vicinity promoting for or against the candidates and party list groups. . . .” 123 Section 9 of
the Fair Elections Act124 on the posting of campaign materials only mentions “parties” and
“candidates”:
_______________
120 Id.
121 Id.
122 Rollo, p. 84.
123 Id., at p. 23.
124 Rep. Act No. 9006 (2001).
64
Sec. 9. Posting of Campaign Materials.—The COMELEC may authorize political parties and
party list groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit
election propaganda: Provided, That the size of the poster areas shall not exceed twelve (12) by sixteen
(16) feet or its equivalent.
Independent candidates with no political parties may likewise be authorized to erect common poster
areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or
its equivalent.
Candidates may post any lawful propaganda material in private places with the consent of the owner
thereof, and in public places or property which shall be allocated equitably and impartially among the
candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations
implementing the Fair Elections Act, provides as follows:
SECTION 17. Posting of Campaign Materials.—Parties and candidates may post any lawful
campaign material in:
a. Authorized common poster areas in public places subject to the requirements and/or limitations set
forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common poster areas and
those enumerated under Section 7(g) of these Rules and the like is prohibited. Persons posting the same
shall be liable together with the candidates and other persons who caused the posting. It will be presumed
that the candidates and parties caused the posting of campaign materials outside the
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common poster areas if they do not remove the same within three (3) days from notice which shall be
issued by the Election Officer of the city or municipality where the unlawful election propaganda are
posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the Election Officer or other
officials of the COMELEC shall apprehend the violators caught in the act, and file the appropriate
charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political
parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006 on “Lawful Election Propaganda” also states that these
are “allowed for all registered political parties, national, regional, sectoral parties or
organizations participating under the party list elections and for all bona fide candidates seeking
national and local elective positions subject to the limitation on authorized expenses of
candidates and political parties. . . .” Section 6 of COMELEC Resolution No. 9615 provides for
a similar wording.
These provisions show that election propaganda refers to matter done by or on behalf of and
in coordination with candidates and political parties. Some level of coordination with the
candidates and political parties for whom the election propaganda are released would ensure that
these candidates and political parties maintain within the authorized expenses limitation.
The tarpaulin was not paid for by any candidate or political party.125 There was no allegation
that petitioners coordinated with any of the persons named in the tarpaulin regarding its posting.
On the other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
_______________
125 Rollo, p. 106.
66
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory
power under the Constitution, to some extent, set a limit on the right to free speech during
election period.127
National Press Club involved the prohibition on the sale and donation of space and time for
political advertisements, limiting political advertisements to COMELEC-designated space and
time. This case was brought by representatives of mass media and two candidates for office in
the 1992 elections. They argued that the prohibition on the sale and donation of space and time
for political advertisements is tantamount to censorship, which necessarily infringes on the
freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press
Club. However, this case does not apply as most of the petitioners were electoral candidates,
unlike petitioners in the instant case. Moreover, the subject matter of National Press Club,
Section 11(b) of Republic Act No. 6646,129 only refers to a particular kind of media such as
newspapers, radio broadcasting, or television.130
_______________
126 G.R. No. 102653, March 5, 1992, 207 SCRA 1 [Per J. Feliciano, En Banc].

127 Rollo, p. 82.
128 National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 6 [Per J. Feliciano, En
Banc].
129 The Electoral Reforms Law of 1987.
130 Rep. Act No. 6646 (1988), Sec. 11(b).
Sec. 11 Prohibited Forms of Election Propaganda.—In addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
....
b) for any newspaper, radio broadcasting or television station, other mass media, or any person making use of the
mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the
Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candi-

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Justice Feliciano emphasized that the provision did not infringe upon the right of reporters or
broadcasters to air their commentaries and opinions regarding the candidates, their qualifications,
and program for government. Compared to Sanidad wherein the columnists lost their ability to
give their commentary on the issues involving the plebiscite, National Press Club does not
involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the candidates for the
2013 national elections because of the COMELEC notice and letter. It was not merely a
regulation on the campaigns of candidates vying for public office. Thus, National Press
Club does not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election
Code, defines an “election campaign” as follows:
....
(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;
_______________
date for any elective public office shall take a leave of absence from his work as such during the campaign period.
68
(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 office 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. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and
political parties themselves. The focus of the definition is that the act must be “designed to
promote the election or defeat of a particular candidate or candidates to a public office.”
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH Law. Thus, petitioners
invoke their right to freedom of expression.

II.B
The violation of the constitutional right
to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate
their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda subject to
their regulation pursuant
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VOL. 747, JANUARY 21, 2015 69
to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the assailed notice
and letter ordering its removal for being oversized are valid and constitutional.131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:
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. 132

No law. . .
While it is true that the present petition assails not a law but an opinion by the COMELEC
Law Department, this court has applied Article III, Section 4 of the Constitution even to
governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as
_______________
131 Rollo, pp. 40 and 47.

132 This right is also found under Article 19 of The Universal Declaration of Human Rights in that “[e]veryone has
the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and regardless of frontiers.” The Universal Declaration
of Human Rights was adopted by the UN General Assembly on December 10, 1948. Available at
<http://www.un.org/en/documents/udhr/index.shtml> (visited March 25, 2013).
133 80 Phil. 75 (1948) [Per J. Feria, En Banc].
134 Id., at pp. 76-77.
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athletic games, sports, or celebration of national holidays.135 What was questioned was not a
law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition
for mandamus to compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En
Banc Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a
restraining order to stop ABS-CBN from conducting exit surveys. 139 The right to freedom of
expression was similarly upheld in this case and, consequently, the assailed resolution was
nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The prohibition
against the abridgment of speech should not mean an absolute prohibition against regulation. The
primary and incidental burden on speech must be weighed against a compelling state interest
clearly allowed in the Constitution. The test depends on the relevant theory of speech implicit in
the kind of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in
addition to the freedom of speech and of the press provided in the US Constitution. The word
_______________
135 Id.
136 Id., at p. 75.
137 Id.
138 Id., at p. 88.
139 ABS-CBN v. Commission on Elections, supra note 39 at p. 787; p. 818.
140 Id., at p. 800; p. 821.
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“expression” was added in the 1987 Constitution by Commissioner Brocka for having a wider
scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line
29, it says: “No law shall be passed abridging the freedom of speech.” I would like to recommend to the
Committee the change of the word “speech” to EXPRESSION; or if not, add the words AND
EXPRESSION after the word “speech,” because it is more expansive, it has a wider scope, and it would
refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr. Bengzon): What does the Committee say?
FR. BERNAS: “Expression” is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr. Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr. Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.
FR. BERNAS: So, that provision will now read: “No law shall be passed abridging the freedom of
speech, expression or of the press . . . .” 141

Speech may be said to be inextricably linked to freedom itself as “[t]he right to think is the
beginning of freedom, and speech must be protected from the government because speech is the
beginning of thought.”142
_______________
141 Record of the 1986 Constitutional Commission, R.C.C. No. 33, Vol. I, July 18, 1986.
142 Freedom of Speech and Expression, 116 Harv. L. Rev. 272, 277 (2002), quoting Justice Kennedy in Ashcroft v.
Free Speech Coalition, 122 S. Ct. 1389, 1403 (2002).
72
II.B.2
Communication is an essential outcome of protected speech.143
Communication exists when “(1) a speaker, seeking to signal others, uses conventional
actions because he or she reasonably believes that such actions will be taken by the audience in
the manner intended; and (2) the audience so takes the actions.”144 “[I]n communicative action[,]
the hearer may respond to the claims by . . . either accepting the speech act’s claims or opposing
them with criticism or requests for justification.”145
Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech
sometimes referred to as ‘symbolic speech[,]’”146 such that “‘when ‘speech’ and ‘nonspeech’
elements are combined in the same course of conduct,’ the ‘com-
_______________
143 There are, of course, theories of the fundamental right to expression that finds the individual’s right to express as
also part of the core value protected by this provision. See for instance Daniel Mark Cohen, Unhappy Anniversary: Thirty
Years since Miller v. California: The Legacy of the Supreme Court’s Misjudgment on Obcenity Part , 15 St. Thomas L.
Rev. 545, 638 (2003). This provides that “[a]lthough speech is a form of communication, communication does not
necessarily constitute speech.” The article states: “A man may communicate (1) the conceptions of his mind through
words, (2) his emotions through facial expressions and body posture, and (3) the perception of his senses through artistic
renditions or photographs. Words, facial expressions, and pictures are all communicative. But only words, as the vehicle
upon which ideas are vitally dependent for their successful conveyance, are comprehended in the word ‘speech.’”
144 Heidi M. Hurd, Sovereignty in Silence, 99 YALE L. J. 945, 954 (1990).
145 Hugh Baxter, System and Lifeworld in Habermas’s Theory of Law, 23 Cardozo L. Rev. 473, 499 (2002).
146 Joshua Waldman, Symbolic Speech and Social Meaning, 97 Colum. L. Rev. 1844, 1847 (1997).
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municative element’ of the conduct may be ‘sufficient to bring into play the [right to freedom
of expression].’”147
The right to freedom of expression, thus, applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner of
communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were
members of the religious sect Jehovah’s Witnesses were to be expelled from school for refusing
to salute the flag, sing the national anthem, and recite the patriotic pledge. 149 In his concurring
opinion, Justice Cruz discussed how the salute is a symbolic manner of communication and a
valid form of expression.150 He adds that freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty not to
utter what is not in his mind. The salute is a symbolic manner of communication that conveys its message
as clearly as the written or spoken word. As a valid form of expression, it cannot be compelled any more
than it can be prohibited in the face of valid religious objections like those raised in this petition. To
impose it on the petitioners is to deny them the right not to speak when their religion bids them to be
silent. This coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot regiment
thought by prescribing
_______________
147 Id., citing US v. O’Brien, 391 U.S. 367, 376 (1968).

148 G.R. No. 95770, March 1, 1993, 219 SCRA 256 [Per J. Griño-Aquino, En Banc].
149 Id., at p. 260.
150 Id., at p. 275, Concurring Opinion of J. Cruz.
74

the recitation by rote of its opinions or proscribing the assertion of unorthodox or unpopular views as
in this case. The conscientious objections of the petitioners, no less than the impatience of those who
disagree with them, are protected by the Constitution. The State cannot make the individual speak when
the soul within rebels. 151

Even before freedom “of expression” was included in Article III, Section 4 of the present
Constitution, this court has applied its precedent version to expressions other than verbal
utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the
classification of the motion picture “Kapit sa Patalim” as “For Adults Only.” They contend that
the classification “is without legal and factual basis and is exercised as impermissible restraint of
artistic expression.”153 This court recognized that “[m]otion pictures are important both as a
medium for the communication of ideas and the expression of the artistic impulse.”154 It adds that
“every writer, actor, or producer, no matter what medium of expression he may use, should be
freed from the censor.”155 This court found that “[the Board’s] perception of what constitutes
obscenity appears to be unduly restrictive.”156 However, the petition was dismissed solely on the
ground that there were
_______________
151 Id., at pp. 275-276.

152 222 Phil. 225; 137 SCRA 717 (1985) [Per CJ. Fernando, En Banc].
153 Id., at p. 228; p. 722.
154 Id., at p. 229; p. 723.
155 Id., at p. 231; p. 725, citing Superior Films v. Regents of University of State of New York, 346 U.S. 587, 589
(1954), J. Douglas, concurring.
156 Gonzalez v. Katigbak, 222 Phil. 225, 234; 137 SCRA 717, 728 (1985) [Per CJ. Fernando, En Banc].
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not enough votes for a ruling of grave abuse of discretion in the classification made by the
Board.157

II.B.3

Size does matter
The form of expression is just as important as the information conveyed that it forms part of
the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which
make it easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes
it easier for passengers inside moving vehicles to read its content. Compared with the
pedestrians, the passengers inside moving vehicles have lesser time to view the content of a
tarpaulin. The larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the
message. The effectivity of communication sometimes relies on the emphasis put by the speakers
and on the credibility of the speakers themselves. Certainly, larger segments of the public may
tend to be more convinced of the point made by authoritative figures when they make the effort
to emphasize their messages.
_______________
157 Id., at p. 235; p. 279.

76
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to
communicate. Rather than simply placing the names and images of political candidates and an
expression of support, larger spaces can allow for brief but memorable presentations of the
candidates’ platforms for governance. Larger spaces allow for more precise inceptions of ideas,
catalyze reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both good governance
and accountability in our government.
These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and
kept hostage by brief and catchy but meaningless sound bites extolling the character of the
candidate. Worse, elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should in fact encourage it.
Between the candidates and the electorate, the latter have the better incentive to demand
discussion of the more important issues. Between the candidates and the electorate, the former
have better incentives to avoid difficult political standpoints and instead focus on appearances
and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally
part of expression protected under Article III, Section 4 of the Constitution.
_______________
158 See Navarro v. Villegas, No. L-31687, February 26, 1970, 31 SCRA 730, 732 and Reyes v. Bagatsing, 210 Phil.
457, 476; 125 SCRA 553, 570 (1983) [Per CJ. Fernando, En Banc]. Both cases involve regulation of time and place, but
this does not affect free speech. In Navarro, this court considered that “civil rights and liberties can exist and be preserved
only in an ordered society.” Moreover, Reyes held that “[t]he high estate accorded the rights to free speech and peaceable
assembly demands nothing less.”
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II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic
right to freedom of expression.
First, this relates to the right of the people to participate in public affairs, including the right
to criticize government actions.
Proponents of the political theory on “deliberative democracy” submit that “substantial, open,
[and] ethical dialogue is a critical, and indeed defining, feature of a good polity.”159 This theory
may be considered broad, but it definitely “includes [a] collective decision-making with the
participation of all who will be affected by the decision.”160 It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.161 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.
Speech that promotes dialogue on public affairs, or airs out grievances and political
discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, “it is hazardous to discourage thought, hope and
imagination; that fear breeds
_______________
159 See James A. Gardner, Shut Up and Vote: A Critique of Deliberative Democracy and the Life of Talk , 63 Tenn.
L. Rev. 421, 422 (1996).
160 See John J. Worley, Deliberative Constitutionalism, Byu L. Rev. 431, 441 (2009), citing Jon Elster, Deliberative
Democracy, p. 8 (1998).
161 Const., Art. II, Sec. 1.
78
repression; that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.”162
In this jurisdiction, this court held that “[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs.”163 This court has, thus, adopted the
principle that “debate on public issues should be uninhibited, robust, and wide open . . .
[including even] unpleasantly sharp attacks on government and public officials.”164
Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that “the ultimate good desired is better reached by
[the] free trade in ideas:”165
When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted
in the competition of the
_______________
162 See J. Sanchez, Concurring and Dissenting Opinion in Gonzales, v. COMELEC, 137 Phil. 471, 523; 27 SCRA
835, 887-888 (1969) [Per J. Fernando, En Banc], citing Concurring Opinion in Whitney v. California, 274 U.S. 357, 375
(1927).
163 United States v. Bustos, 37 Phil. 731, 740 (1918) [Per J. Malcolm, En Banc].
164 Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 716 [Per J. Gutierrez, Jr., En Banc].
See also Gonzales v. COMELEC, supra at p. 493; p. 857.
165 See The Impermeable Life: Unsolicited Communications in the Marketplace of Ideas, 118 Harv. L. Rev. 1314
(2005), citing Abrams v. United States, 250 U.S. 616, 630 (1919). In Abrams, Justice Holmes dissented from the Supreme
Court’s opinion affirming the conviction of five men for circulating pro-Soviet leaflets.
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market, and that truth is the only ground upon which their wishes safely can be carried out. 166

The way it works, the exposure to the ideas of others allows one to “consider, test, and
develop their own conclusions.”167 A free, open, and dynamic market place of ideas is constantly
shaping new ones. This promotes both stability and change where recurring points may
crystallize and weak ones may develop. Of course, free speech is more than the right to approve
existing political beliefs and economic arrangements as it includes, “[t]o paraphrase Justice
Holmes, [the] freedom for the thought that we hate, no less than for the thought that agrees with
us.”168 In fact, free speech may “best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger.” 169 It is in this
context that we should guard against any curtailment of the people’s right to participate in the
free trade of ideas.
Third, free speech involves self-expression that enhances human dignity. This right is “a
means of assuring individual self-fulfillment,”170 among others. In Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc.,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential
_______________
166 Id.
167 Id.
168 Gonzales v. COMELEC, supra note 162 at p. 493; pp. 857-858, citing Justice Holmes in U.S. v. Schwimmer, 279
U.S. 644, 655 (1929).
169 Gonzales v. COMELEC, id., at p. 493; p. 857 citing Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).
170 Gonzales v. COMELEC, id.
171 Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 151-A Phil. 656; 51
SCRA 189 (1973) [Per J. Makasiar, En Banc].
80

to man’s enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these
freedoms the citizens can participate not merely in the periodic establishment of the government through
their suffrage but also in the administration of public affairs as well as in the discipline of abusive public
officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on
erring public officers and employees. (Emphasis supplied)
172

Fourth, expression is a marker for group identity. For one, “[v]oluntary associations perform
[an] important democratic role [in providing] forums for the development of civil skills, for
deliberation, and for the formation of identity and community spirit[,] [and] are largely immune
from [any] governmental interference.”173 They also “provide a buffer between individuals and
the state — a free space for the development of individual personality, distinct group identity,
and dissident ideas — and a potential source of opposition to the state.”174 Free speech must be
protected as the vehicle to find those who have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to “protect individuals and
minorities against majoritarian abuses perpetrated through [the] framework [of democratic
_______________
172 Id., at p. 675; pp. 201-202.

173 See Lessons in Transcendence: Forced Associations and the Military, 117 Harv. L. Rev. 1981 (2004). This note
explains why integration has been so successful regarding military as a forced community, and acknowledging the benefits
that forced communities produce such as empathy and the like. It discusses voluntary associations by way of background.
174 Id., at p. 1983, citing Cynthia Estlund, Working Together: How Workplace Bonds Strengthen a Diverse
Democracy, p. 106 (2003).
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governance].”175 Federalist framers led by James Madison were concerned about two
potentially vulnerable groups: “the citizenry at large — majorities — who might be tyrannized or
plundered by despotic federal officials”176 and the minorities who may be oppressed by
“dominant factions of the electorate [that] capture [the] government for their own selfish
ends[.]”177 According to Madison, “[i]t is of great importance in a republic not only to guard the
society against the oppression of its rulers, but to guard one part of the society against the
injustice of the other part.”178 We should strive to ensure that free speech is protected especially in
light of any potential oppression against those who find themselves in the fringes on public
issues.
Lastly, free speech must be protected under the safety valve theory. 179 This provides that
“nonviolent manifestations of dissent reduce the likelihood of violence[.]”180 “[A] dam about to
burst . . . resulting in the ‘banking up of a menacing flood of sullen anger behind the walls of
restriction’”181 has been used to describe the effect of repressing nonviolent outlets. 182 In order to
avoid this situation and prevent people from resorting to violence, there is a need for peaceful
methods in making passionate dissent. This includes “free expression and
_______________
175 See Daryl J. Levinson, Rights and Votes, 121 Yale L. J. 1293 (2012).
176 Id., at pp. 1293-1294.
177 Id., at p. 1294.
178 Id.
179 See Reyes v. Bagatsing, supra note 158 at p. 468; p. 562.
180 See Safety Valve Closed: The Removal of Nonviolent Outlets for Dissent and the Onset of Anti-Abortion
Violence, 113 Harv. L. Rev. 1210, 1222 (2000).
181 Id., citing Bradley C. Bobertz, The Brandeis Gambit: The Making of America’s “First Freedom,” 1909-1931, 40
WM. & Mary L. Rev. 557, 611 (1999), quoting Glenn Frank, Is Free Speech Dangerous? 355, 359 (July 1920).
182 Id.
82
political participation”183 in that they can “vote for candidates who share their views, petition
their legislatures to [make or] change laws, . . . distribute literature alerting other citizens of their
concerns[,]”184 and conduct peaceful rallies and other similar acts.185 Free speech must, thus, be
protected as a peaceful means of achieving one’s goal, considering the possibility that repression
of nonviolent dissent may spill over to violent means just to drive a point.
II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulin is election propaganda, being petitioners’ way of
endorsing candidates who voted against the RH Law and rejecting those who voted for it.186 As
such, it is subject to regulation by COMELEC under its constitutional mandate. 187 Election
propaganda is defined under Section 1(4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions . . .
....
4. The term “political advertisement” or “election propaganda” refers to any matter broadcasted,
associated with a candidate or party, and is intended to draw
_______________
183 Id., at p. 1223.
184 Id., at p. 1210.
185 Id.
186 Rollo, pp. 72-73.
187 Id., at p. 73.
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the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public office. In broadcast media, political advertisements
may take the form of spots, appearances on TV shows and radio programs, live or taped announcements,
teasers, and other forms of advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that appear on
any Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.

On the other hand, petitioners invoke their “constitutional right to communicate their
opinions, views and beliefs about issues and candidates.” 188 They argue that the tarpaulin was
their statement of approval and appreciation of the named public officials’ act of voting against
the RH Law, and their criticism toward those who voted in its favor. 189 It was “part of their
advocacy campaign against the RH Law,”190 which was not paid for by any candidate or political
party.191 Thus, “the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their]
freedom of expression should be declared unconstitutional and void.”192
This court has held free speech and other intellectual freedoms as “highly ranked in our
scheme of constitutional val-
_______________
188 Id., at p. 107.
189 Id.
190 Id., at p. 106.
191 Id.
192 Id., at p. 111.
84
ues.”193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills, this court
discussed the preferred position occupied by freedom of expression:
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 efficacious shield against the tyranny of officials, of
majorities, of the influential 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.” (Citations omitted)
195

This primordial right calls for utmost respect, more so “when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage.” 196 A
similar idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s
concurring and dissenting opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people to elect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the language
_______________
193 Reyes v. Bagatsing, supra note 158 at p. 475; p. 563. See also Adiong v. COMELEC, supra note 164 at pp. 712,
715 and 717.
194 Reyes v. Bagatsing, id., at p. 475; p. 570.
195 Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., supra note 171 at p.
676; p. 202.
196 Adiong v. COMELEC, supra at p. 716.
197 Gonzales v. COMELEC, supra note 162.
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of the declaration of principles of our Constitution, “The Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from them” (Section 1, Article II).
Translating this declaration into actuality, the Philippines is a republic because and solely because the
people in it can be governed only by officials whom they themselves have placed in office by their votes.
And in it is on this cornerstone that I hold it to be self-evident that when the freedoms of speech, press
and peaceful assembly and redress of grievances are being exercised in relation to suffrage or as a
means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile, the conduct of public affairs by our officials must be
allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and at all times.
Every holder of power in our government must be ready to undergo exposure any moment of the day or
night, from January to December every year, as it is only in this way that he can rightfully gain the
confidence of the people. I have no patience for those who would regard public dissection of the
establishment as an attribute to be indulged by the people only at certain periods of time. I consider the
freedoms of speech, press and peaceful assembly and redress of grievances, when exercised in the name
of suffrage, as the very means by which the right itself to vote can only be properly enjoyed. It stands to
reason therefore, that suffrage itself would be next to useless if these liberties cannot be untrammelled
[sic] whether as to degree or time. (Emphasis supplied)
198

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some
types of speech may be subject to regulation:
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
_______________
198 Id., at p. 563; pp. 926-927.

86

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. We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as “fighting words” are not entitled to
constitutional protection and may be penalized. (Citations omitted)
199

We distinguish between political and commercial speech. Political speech refers to speech
“both intended and received as a contribution to public deliberation about some
issue,”200 “foster[ing] informed and civic-minded deliberation.”201 On the other hand, commercial
speech has been defined as speech that does “no more than propose a commercial transaction.”202
The expression resulting from the content of the tarpaulin is, however, definitely political
speech.
In Justice Brion’s dissenting opinion, he discussed that “[t]he content of the tarpaulin, as well
as the timing of its posting, makes it subject of the regulations in RA 9006 and Comelec
Resolution No. 9615.”203 He adds that “[w]hile indeed the RH issue, by itself, is not an electoral
matter, the slant that the petitioners gave the issue converted the nonelection
199 Chavez v. Gonzales, 569 Phil. 155, 199; 545 SCRA 441, 486 (2008) [Per CJ. Puno, En Banc].
200 See footnote 64 of Freedom of Speech and Expression, 116 Harv. L. Rev. 272 (2002), citing Cass R.
Sunstein, Free Speech Now, The Bill of Rights in the Modern State 255, 304 (1992).
201 See Freedom of Speech and Expression, 116 Harv. L. Rev. 272, 278 (2002).
202 See Eric Barendt, Tobacco Advertising: The Last Puff?, Pub. L. 27 (2002).
203 J. Brion, Dissenting Opinion, p. 152.
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issue into a live election one hence, Team Buhay and Team Patay and the plea to support one
and oppose the other.”204
While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for
or posted “in return for consideration” by any candidate, political party, or party list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the
facts of this case requires, states:
4. The term “political advertisement” or “election propaganda” refers to any matter broadcasted,
public office. In broadcast media, political advertisements may take the form of spots, appearances on TV
shows and radio programs, live or taped announcements, teasers, and other forms of advertising messages
or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that appear
on any Internet website, including, but not limited to, social networks, blogging sites, and micro-
blogging sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis
supplied)
_______________

88
It is clear that this paragraph suggests that personal opinions are not included, while
sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions.—As used in this Resolution:
1. 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, and shall include any of the
following:
....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered
acts of election campaigning or partisan political activity unless expressed by government officials in the
Executive Department, the Legislative Department, the Judiciary, the Constitutional Commissions, and
members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in
Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for full
discussion of public affairs. We acknowledged that free speech includes the right to criticize the
conduct of public men:
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205 37 Phil. 731 (1918) [Per J. Malcolm, En Banc].

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The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under
a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus
can the intelligence and dignity of the individual be exalted. 206

Subsequent jurisprudence developed the right to petition the government for redress of
grievances, allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v.
People,208 this court noted every citizen’s privilege to criticize his or her government, provided it
is “specific and therefore constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire government setup.”209
The 1927 case of People v. Titular210 involved an alleged violation of the Election Law
provision “penaliz[ing] the anonymous criticism of a candidate by means of posters or
circulars.”211 This court explained that it is the poster’s anonymous character that is being
penalized.212 The ponente adds that he would “dislike very much to see this decision made the
vehicle for the suppression of public opinion.”213
_______________
206 Id., at pp. 740-741.

207 People v. Perez, 45 Phil. 599, 604-605 (1923) [Per J. Malcolm, En Banc].
208 90 Phil. 524 (1951) [Per J. Bengzon, En Banc].
209 Id., at p. 529.
210 49 Phil. 930 (1927) [Per J. Malcolm, En Banc].
211 Id., at p. 931.
212 Id., at p. 937.
213 Id., at p. 938.
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In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their
views. According to this court, “[i]ts value may lie in the fact that there may be something worth
hearing from the dissenter [and] [t]hat is to ensure a true ferment of ideas.”215
Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be changed
for the better and ideas that may be deliberated on to attain that purpose. Necessarily, it also
makes the government accountable for acts that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which
prohibits mass media from selling print space and air time for campaign except to the
COMELEC, to be a democracy-enhancing measure.216 This court mentioned how “discussion of
public issues and debate on the qualifications of candidates in an election are essential to the
proper functioning of the government established by our Constitution.”217
As pointed out by petitioners, “speech 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.”218 At the heart of democracy is every advocate’s right to make known
what the people need to know,219 while the meaningful exercise of one’s
_______________
214 210 Phil. 457; 125 SCRA 553 (1983) [Per CJ. Fernando, En Banc].

215 Id., at p. 468; pp. 562-563.
216 Osmeña v. COMELEC, 351 Phil. 692, 720; 288 SCRA 447, 479 (1998) [Per J. Mendoza, En Banc].
217 Id., at p. 719; pp. 478-479.
218 Rollo, p. 108.
219 See Barry Sullivan, FOIA and the First Amendment: Representative Democracy and the People’s Elusive “Right
to Know,” 72 MD. L. REV. 1, 9 (2012). “[P]eople’s ‘right to know’ serves two sepa
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right of suffrage includes the right of every voter to know what they need to know in order to
make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public
issues, and the freedom of expression especially in relation to information that ensures the
meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Too many restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.
We have also ruled that the 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. (Emphasis supplied, citations omitted)
221

Speech with political consequences is at the core of the freedom of expression and must be
protected by this court.
Justice Brion pointed out that freedom of expression “is not the god of rights to which all
other rights and even government protection of state interest must bow.”222
The right to freedom of expression is indeed not absolute. Even some forms of protected
speech are still subject to some restrictions. The degree of restriction may depend on whether
_______________
rate democratic values: governmental accountability and citizen participation.”

220 Adiong v. COMELEC, supra note 164.
221 Id., at p. 716. See also Mutuc v. COMELEC, 146 Phil. 798, 805-806; 36 SCRA 228, 233-234 (1970)
[Per J. Fernando, En Banc].
92
the regulation is content-based or content-neutral.223 Content-based regulations can either be
based on the viewpoint of the speaker or the subject of the expression.

II.B.6

Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-neutral
regulation. The order was made simply because petitioners failed to comply with the maximum
size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation is content-based as it
applies only to political speech and not to other forms of speech such as commercial
speech.225 “[A]ssuming arguendo that the size restriction sought to be applied . . . is a mere time,
place, and manner regulation, it’s still unconstitutional for lack of a clear and reasonable nexus
with a constitutionally sanctioned objective.”226
The regulation may reasonably be considered as either content-neutral or content-
based.227 Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned
order applies only to posters
_______________
223 See Chavez v. Gonzales, supra note 199 at pp. 204-205; pp. 492-493. See also Erwin Chemerinsky, Content
Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court’s Application, 74 S. CAL. L. Rev.
49, 51 (2000).
224 Rollo, p. 83.
225 Id., at p. 118.
226 Id., at p. 123.
227 See for instance Wilson R. Huhn, Assessing the Constitutionality of Laws That Are Both Content-Based and
Content-Neutral: The Emerging Constitutional Calculus, 79 Ind. L. J. 801 (2004).
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and tarpaulins that may affect the elections because they deliver opinions that shape both their
choices. It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of
noncandidates will be adjudged as “election paraphernalia.” There are no existing bright lines to
categorize speech as election-related and those that are not. This is especially true when citizens
will want to use their resources to be able to raise public issues that should be tackled by the
candidates as what has happened in this case. COMELEC’s discretion to limit speech in this case
is fundamentally unbridled.
Size limitations during elections hit at a core part of expression. The content of the tarpaulin
is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the
clear and present danger rule as measure.228 Thus, in Chavez v. Gonzales:
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 justified by a
compelling reason, and the restrictions imposed are neither overbroad nor vague. (Citations omitted)
229

Under this rule, “the evil consequences sought to be prevented must be substantive,
‘extremely serious and the degree of imminence extremely high.’”230 “Only when the challenged
act has overcome the clear and present danger rule will it pass constitutional muster, with the
government hav
_______________
228 Chavez v. Gonzales, supra note 199 at pp. 207-208; p. 496.

229 Id.
230 Id., at p. 200; p. 488.
94
ing the burden of overcoming the presumed unconstitutionality.”231
Even with the clear and present danger test, respondents failed to justify the regulation. There
is no compelling and substantial state interest endangered by the posting of the tarpaulin as to
justify curtailment of the right of freedom of expression. There is no reason for the state to
minimize the right of noncandidate petitioners to post the tarpaulin in their private property. The
size of the tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions “based on the subject matter of the
utterance or speech.”232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233
This court has attempted to define “content-neutral” restraints starting with the 1948 case
of Primicias v. Fugoso.234 The ordinance in this case was construed to grant the Mayor discretion
only to determine the public places that may be used for the procession or meeting, but not the
power to refuse the issuance of a permit for such procession or meeting.235 This court explained
that free speech and peaceful assembly are “not absolute for it may be so regulated that it shall
not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights
of the community or society.”236
_______________
231 Id., at p. 206; p. 494.

232 Id., at p. 205; p. 493.
233 Id., at p. 204; p. 493. See Primicias v. Fugoso, 80 Phil. 71 (1948) [Per J. Feria, En Banc]; Reyes v.
Bagatsing, supra note 158.
234 Primicias v. Fugoso, id.
235 Id., at p. 77.
236 Id., at p. 75.
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The earlier case of Calalang v. Williams237 involved the National Traffic Commission
resolution that prohibited the passing of animal-drawn vehicles along certain roads at specific
hours.238 This court similarly discussed police power in that the assailed rules carry out the
legislative policy that “aims to promote safe transit upon and avoid obstructions on national
roads, in the interest and convenience of the public.”239
As early as 1907, United States v. Apurado240 recognized that “more or less disorder will mark
the public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement. . . .”241 It is
with this backdrop that the state is justified in imposing restrictions on incidental matters as time,
place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit
applicants must follow which include informing the licensing authority ahead of time as regards
the date, public place, and time of the assembly.242 This would afford the public official time to
inform applicants if there would be valid objections, provided that the clear and present danger
test is the standard used for his decision and the applicants are given the opportunity to be
heard.243 This ruling was practically codified in Batas Pambansa Blg. 880, otherwise known as
the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa Blg. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas
_______________
237 70 Phil. 726 (1940) [Per J. Laurel, En Banc].

238 Id., at pp. 728-729.
239 Id., at p. 733.
240 7 Phil. 422 (1907) [Per J. Carson, En Banc].
241 Id., at p. 426.
242 Reyes v. Bagatsing, supra note 158 at p. 475; p. 563.
243 Id.
244 522 Phil. 201; 488 SCRA 226 (2006) [Per J. Azcuna, En Banc].
96
Pambansa Blg. 880 does not prohibit assemblies but simply regulates their time, place, and
manner.245 In 2010, this court found in Integrated Bar of the Philippines v. Atienza 246 that
respondent Mayor Atienza committed grave abuse of discretion when he modified the rally
permit by changing the venue from Mendiola Bridge to Plaza Miranda without first affording
petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not
easily divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these “restrict the manner by which speech is
relayed but not the content of what is conveyed.”248
If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not
pass the three requirements for evaluating such restraints on freedom of speech.249 “When
_______________
245 Id., at pp. 219 and 231; p. 268. See also Osmeña v. COMELEC, supra note 216 at p. 719; p. 467.
246 Integrated Bar of the Philippines v. Atienza, G.R. No. 175241, February 24, 2010, 613 SCRA 518 [Per J. Carpio-
Morales, First Division].
247 Id., at pp. 526-527.
248 J. Carpio, Separate Concurring Opinion, p. 127, emphasis in the original; J. Perlas-Bernabe, Separate Concurring
Opinion, p. 172.
249 Chavez v. Gonzales, supra note 199 at p. 200; p. 487. The ponencia was concurred in by J. Ynares-Santiago
and J. Reyes. Separate concurring opinions were written by J. Sandoval-Gutierrez, J. Carpio, and J. Azcuna. Three
justices (J. Quisumbing, J. Austria-Martinez, and J. Carpio Morales) joined J. Carpio’s opinion. Dissenting and
concurring opinions were written by J. Tinga and J. Velasco, Jr. Separate dissenting opinions were written by J. Chico-
Nazario
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the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity,” 250 and it is subject only to the intermediate
approach.251
This intermediate approach is based on the test that we have prescribed in several cases.252 A
content-neutral government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no greater
than is essential to the furtherance of that interest. 253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate
the tarpaulin. As discussed earlier, this is protected speech by petitioners who are noncandidates.
On the second requirement, not only must the governmental interest be important or
substantial, it must also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We
have held, for example, that “the welfare of children and the State’s mandate to protect
_______________
and J. Nachura. J. Corona joined J. Nachura’s opinion. J. Leonardo-De Castro joined J. Nazario’s and J. Nachura’s

opinions.
250 Id., at p. 205; p. 493. See Osmeña v. COMELEC, supra note 216 at p. 717; p. 477 [Per J. Mendoza, En Banc].
251 Id.
252 See Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571; 357 SCRA 496 (2001) [Per J. Mendoza, Second
Division]; Adiong v. COMELEC, supra note 164; Osmeña v. COMELEC, supra.
253 Chavez v. Gonzales, supra note 199 at p. 206; p. 494.
98
and care for them, as parens patriae,254 constitute a substantial and compelling government
interest in regulating . . . utterances in TV broadcast.”255
Respondent invokes its constitutional mandate to ensure equal opportunity for public
information campaigns among candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256
Section 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality thereof,
including any government-owned or -controlled corporation or its subsidiary. Such supervision
or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections.
Justice Brion in his dissenting opinion discussed that “[s]ize limits to posters are necessary to
ensure equality of public information campaigns among candidates, as allowing posters with
different sizes gives candidates and their supporters the incentive to post larger posters[,] [and]
[t]his places candidates with more money and/or with deep-pocket supporters at an undue
advantage against candidates with more humble financial capabilities.”257
First, Adiong v. COMELEC has held that this interest is “not as important as the right of [a
private citizen] to freely express his choice and exercise his right of free speech.” 258 In any case,
faced with both rights to freedom of speech and
_______________
254 Const., Art. II, Secs. 12 and 13.

255 Soriano v. Laguardia, 605 Phil. 43, 106; 587 SCRA 79, 110 (2009) [Per J. Velasco, Jr., En Banc].
256 Const., Art. IX-C, Sec. 4.
258 Adiong v. COMELEC, supra note 164 at p. 722.
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equality, a prudent course would be to “try to resolve the tension in a way that protects the
right of participation.”259
Second, the pertinent election laws related to private property only require that the private
property owner’s consent be obtained when posting election propaganda in the property.260 This is
consistent with the fundamental right against deprivation of property without due process of
law.261 The present facts do not involve such posting of election propaganda absent consent from
the property owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend effective
measures to minimize election spending. Specifically, Article IX-C, Section 2(7) provides:
....
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms
of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)

This does not qualify as a compelling and substantial government interest to justify regulation
of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three
feet (3’) size limitation
_______________
259 See John A. Powell, Worlds Apart: Reconciling Freedom of Speech and Equality, 85 KY.L.J. 94 (1996-1997).
260 Rep. Act No. 9006, Sec. 9; COMELEC Resolution No. 9615, Sec. 17(b).
261 Const., Art. III, Sec. 1.
262 Const., Art. IX-C, Sec. 2(7).
100
under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements the Fair
Elections Act that provides for the same size limitation.263
This court held in Adiong v. COMELEC that “[c]ompared to the paramount interest of the
State in guaranteeing freedom of expression, any financial considerations behind the regulation
are of marginal significance.”264 In fact, speech with political consequences, as in this case,
should be encouraged and not curtailed. As petitioners pointed out, the size limitation will not
serve the objective of minimizing election spending considering there is no limit on the number
of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive in
imposing the restriction, but more so at the effects of such restriction, if implemented. The
restriction must not be narrowly tailored to achieve the purpose. It must be demonstrable. It must
allow alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the
maximum size of the tarpau-
_______________
263 Rep. Act No. 9006 (2001), Sec. 3.3, provides:

Sec. 3. Lawful Election Propaganda.— . . . .
For the purpose of this Act, lawful election propaganda shall include:
....
3.3. Cloth, paper or cardboard posters whether framed, or posted, with an area not exceeding two (2) feet by three
(3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said
meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said
streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four
(24) hours after said meeting or rally[.]
265 Rollo, p. 133.
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lin would render ineffective petitioners’ message and violate their right to exercise freedom of
expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised to
make more meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test of intermediate scrutiny
for content-neutral regulations.
The action of the COMELEC in this case is a strong deterrent to further speech by the
electorate. Given the stature of petitioners and their message, there are indicators that this will
cause a “chilling effect” on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of Marshall
McLuhan, “the medium is the message.”266 McLuhan’s colleague and mentor Harold Innis has
earlier asserted that “the materials on which words were written down have often counted for
more than the words themselves.”267

III
Freedom of expression and equality

III.A
The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.
_______________
266 Christina J. Angelopoulos, Freedom of Expression and Copyright: The Double Balancing Act, I.P.Q. 3, 334-335
(2008).
267 M. Ethan Katsh, Cybertime, Cyberspace and Cyberlaw, J. ONLINE L. Art. 1, par. 7 (1995).
102
On the one extreme, this can take illicit forms such as when endorsement materials in the
form of tarpaulins, posters, or media advertisements are made ostensibly by “friends” but in
reality are really paid for by the candidate or political party. This skirts the constitutional value
that provides for equal opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is not the
situation that confronts us. In such cases, it will simply be a matter for investigation and proof of
fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any
political candidate should not be held hostage by the possibility of abuse by those seeking to be
elected. It is true that there can be underhanded, covert, or illicit dealings so as to hide the
candidate’s real levels of expenditures. However, labelling all expressions of private parties that
tend to have an effect on the debate in the elections as election paraphernalia would be too broad
a remedy that can stifle genuine speech like in this case. Instead, to address this evil, better and
more effective enforcement will be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate, others will
spend their own resources in order to lend support for the campaigns. This may be without
agreement between the speaker and the candidate or his or her political party. In lieu of donating
funds to the campaign, they will instead use their resources directly in a way that the candidate
or political party would have done so. This may effectively skirt the constitutional and statutory
limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in this case will certainly not be what candidates and political
parties will carry in their election posters or media ads. The message of petitioner, taken as a
whole, is an advocacy of a social issue that it deeply believes.
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Through rhetorical devices, it communicates the desire of Diocese that the positions of those
who run for a political position on this social issue be determinative of how the public will
vote. It primarily advocates a stand on a social issue; only secondarily — even almost
incidentally — will cause the election or nonelection of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a “literary form that employs
such devices as sarcasm, irony and ridicule to deride prevailing vices or follies,”268 and this may
target any individual or group in society, private and government alike. It seeks to effectively
communicate a greater purpose, often used for “political and social criticism” 269 “because it tears
down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty lampooned and spoofed.”270 Northrop Frye, well-
known in this literary field, claimed that satire had two defining features: “one is wit or humor
founded on fantasy or a sense of the grotesque and absurd, the other is an object of
attack.”271 Thus, satire frequently uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, “Team Patay” does not refer to a list of dead individuals
nor could the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan
of the candidates in his list was to cause death intentionally. The tarpaulin caricatures political
parties and parodies the intention of those in the list. Furthermore,
_______________
268 See Leslie Kim Treiger, Protecting Satire Against Libel Claims: A New Reading of the First Amendment’s
Opinion Privilege, 98 YALE L.J. 1215 (1989).
269 Id.
270 Id., citing Falwell v. Flynt, 805 F.2d 484, 487 (4 Cir. 1986) (J. Wilkinson, Dissenting from denial of
th
rehearing En Banc).
271 See Joseph Brooker, Law, Satire, Incapacity: Satire Bust: The Wagers of Money, 17 Law & Literature 321, 327
(2005), citing Northrop Frye, Anatomy of Criticism: Four Essays 224 (1957).
104
the list of “Team Patay” is juxtaposed with the list of “Team Buhay” that further emphasizes
the theme of its author: Reproductive health is an important marker for the church of petitioners
to endorse.
The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and
contain no sophisticated literary allusion to any social objective. Thus, they usually simply
exhort the public to vote for a person with a brief description of the attributes of the candidate.
For example “Vote for [x], Sipag at Tiyaga,” “Vote for [y], Mr. Palengke,” or “Vote for [z], Iba
kami sa Makati.”
This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human institution no matter how endowed
with the secular ability to decide legal controversies with finality entails that we are not the
keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides space for the weakest
dissent. Tolerance has always been a libertarian virtue whose version is embedded in our Bill of
Rights. There are occasional heretics of yesterday that have become our visionaries.
Heterodoxies have always given us pause. The unforgiving but insistent nuance that the majority
surely and comfortably disregards provides us with the checks upon reality that may soon evolve
into creative solutions to grave social problems. This is the utilitarian version. It could also be
that it is just part of human necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other
provisions which, taken together
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with the guarantee of free expression, enhances each other’s value. Among these are the
provisions that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of
diluting freedoms as exercised in reality and, thus, render them meaningless.

III.B.
Speech and equality:
Some considerations

We first establish that there are two paradigms of free speech that separate at the point of
giving priority to equality vis-à-vis liberty.272
In an equality-based approach, “politically disadvantaged speech prevails over regulation[,]
but regulation promoting political equality prevails over speech.”273 This view allows the
government leeway to redistribute or equalize ‘speaking power,’ such as protecting, even
implicitly subsidizing, unpopular or dissenting voices often systematically subdued within
society’s ideological ladder.274 This view acknowledges that there are dominant political actors
who, through authority, power, resources, identity, or status, have capabilities that may drown
out the messages of others. This is especially true in a developing or emerging economy that is
part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self de-
_______________
272 See Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 Harv. L. Rev. 144-146 (2010).
273 Id., at p. 145.
274 Id., at pp. 148-149.
106
termination of one’s communities is not new only to law. It has always been a philosophical
problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering
freedoms exercised within such limitation as merely “protect[ing] the already established
machinery of discrimination.”275 In his view, any improvement “in the normal course of events”
within an unequal society, without subversion, only strengthens existing interests of those in
power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression may
become meaningless if not taken in a real context. This tendency to tackle rights in the abstract
compromises liberties. In his words:
Liberty is self-determination, autonomy — this is almost a tautology, but a tautology which results
from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be able
to determine what to do and what not to do, what to suffer and what not. But the subject of this autonomy
is never the contingent, private individual as that which he actually is or happens to be; it is rather the
individual as a human being who is capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and law, between general and individual interest,
common and private welfare in an established society, but of creating the society in which man is no
longer enslaved by institutions which vitiate self-determination from the beginning. In other words,
freedom is still to be
_______________
275 See Herbert Marcuse, Repressive Tolerance, in A Critique of Pure Tolerance, p. 85 (1965).

276 Id., at pp. 93-94.
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created even for the freest of the existing societies. (Emphasis in the original)
277

Marcuse suggests that the democratic argument — with all opinions presented to and
deliberated by the people — “implies a necessary condition, namely, that the people must be
capable of deliberating and choosing on the basis of knowledge, that they must have access to
authentic information, and that, on this basis, their evaluation must be the result of autonomous
thought.”278 He submits that “[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace of ideas’ is
organized and delimited by those who determine the national and the individual interest.”279
A slant toward left manifests from his belief that “there is a ‘natural right’ of resistance for
oppressed and overpowered minorities to use extralegal means if the legal ones have proved to
be inadequate.”280 Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance of libertarian society
he refers to as “repressive tolerance.”

Legal scholars

The 20th century also bears witness to strong support from legal scholars for “stringent
protections of expressive liberty,”281 especially by political egalitarians. Considerations such as
“expressive, deliberative, and informational interests,”282 costs or the price of expression, and
background facts,
_______________
277 Id., at pp. 86-87.
278 Id., at p. 95.
279 Id., at p. 110.
280 Id., at p. 116.
281 See Joshua Cohen, Freedom of Expression, in Toleration: an Elusive Virtue, p. 176 (1996).
282 Id., at p. 184.
108
when taken together, produce bases for a system of stringent protections for expressive
liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis
proposed that “public discussion is a political duty.”284 Cass Sustein placed political speech on the
upper tier of his two-tier model for freedom of expression, thus, warranting stringent
protection.285 He defined political speech as “both intended and received as a contribution to
public deliberation about some issue.”286
But this is usually related also to fair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equality since
“favorable conditions for realizing the expressive interest will include some assurance of the
resources required for expression and some guarantee that efforts to express views on matters of
common concern will not be drowned out by the speech of better-endowed citizens.”288
Justice Brandeis’ solution is to “remedy the harms of speech with more speech.” 289 This view
moves away from playing down the danger as merely exaggerated, toward “tak[ing] the costs
seriously and embrac[ing] expression as the preferred strategy for addressing them.”290
However, in some cases, the idea of more speech may not be enough. Professor Laurence
Tribe observed the need for context and “the specification of substantive values before
_______________
283 Id., at pp. 184-192.

284 Id., at p. 186, citing Whitney v. California, 274 US 357, 375 (1927) (J. Brandeis, concurring).
285 See Joshua Cohen, Freedom of Expression, supra note 281 at p. 187.
286 Id., citing Democracy, p. 134.
287 Id., at p. 179.
288 Id., at p. 202.
289 Id., at p. 200.
290 Id., at p. 201.
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[equality] has full meaning.”291 Professor Catherine A. MacKinnon adds that “equality
continues to be viewed in a formal rather than a substantive sense.”292 Thus, more speech can only
mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section
11(b) of the Electoral Reforms Law of 1987.293 This section “prohibits mass media from selling or
giving free of charge print space or air time for campaign or other political purposes, except to
the Commission on Elections.”294 This court explained that this provision only regulates the time
and manner of advertising in order to ensure media equality among candidates.295 This court
grounded this measure on constitutional provisions mandating political equality:296
Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned or -
controlled
_______________
291 See John A. Powell, Worlds Apart: Reconciling Freedom of Speech and Equality, 85 KY. L. J. 9, 50-51 (1996-
1997).
292 Id., at p. 51.
293 Osmeña v. COMELEC, supra note 216 at p. 705; p. 478.
294 Id., at p. 702; p. 461.
295 Id., at p. 706; p. 467.
296 Id., at pp. 713-714; p. 473.
110
corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic, and political inequalities,
and remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its
increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more
substantive expressive freedoms that take equality of opportunities into consideration during
elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or
equality in the ability of citizens as speakers should not have a bearing in free speech doctrine.
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VOL. 747, JANUARY 21, 2015 111
Under this view, “members of the public are trusted to make their own individual evaluations
of speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market.” 297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional
validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative rather than
affirmative language. It uses ‘speech’ as its subject and not ‘speakers.’298 Consequently, the
Constitution protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, “government must leave speakers and listeners in the private order to
their own devices in sorting out the relative influence of speech.”300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that
freedom of speech includes “not only the right to express one’s views, but also other cognate
rights relevant to the free communication [of] ideas, not excluding the right to be informed on
matters of public concern.”301 She adds:
And since so many imponderables may affect the outcome of elections — qualifications of voters and
candidates, education, means of transportation, health, public discussion, private animosities, the weather,
the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of men and issues,
through assembly,
_______________
297 See Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 Harv. L. Rev. 145 (2010).
298 Id., at pp. 155-156.
299 Id., at p. 156.
300 Id., at p. 157.
301 J. Romero, Dissenting Opinion in Osmeña v. COMELEC, supra note 216 at p. 736; p. 496 [Per J. Mendoza, En
Banc].
112
association and organizations, both by the candidate and the voter, becomes a sine qua non for
elections to truly reflect the will of the electorate. (Emphasis supplied)
302

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that “courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,”303 thus:
the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was designed to
“secure the widest possible dissemination of information from diverse and antagonistic sources” and “to
assure unfettered interchange of ideas for the bringing about of political and social changes desired by the
people.” 304

This echoes Justice Oliver Wendell Holmes’ submission “that the market place of ideas is
still the best alternative to censorship.”305
Parenthetically and just to provide the whole detail of the argument, the majority of the US
Supreme Court in the campaign expenditures case of Buckley v. Valeo “condemned restrictions
(even if content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative
voice of others’
_______________
302 Id., at p. 742; p. 503.

303 Id., at p. 755; p. 516.
304 Id., at p. 750; p. 511, quoting Buckley v. Valeo, 424 US 1 (1976), citing New York Times v. Sullivan, 84 S Ct. 710,
quoting Associated Press v. United States, 326 US 1 (1945) and Roth v. United States, 484.
305 J. Carpio, Dissenting opinion in Soriano v. Laguardia, G.R. No. 164785, March 15, 2010, 615 SCRA 254, 281
[Per J. Velasco, Jr., En Banc], citing the Dissenting Opinion of J. Holmes in Abrams v. United States, 250 U.S. 616, 40 S.
Ct. 17, 63 L. Ed. 1173 (1919).
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and thereby ‘equaliz[ing] access to the political arena.’”306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditure limits is that “any limit placed on the amount which a
person can speak, which takes out of his exclusive judgment the decision of when enough is
enough, deprives him of his free speech.”307
Another flaw is how “[a]ny quantitative limitation on political campaigning inherently
constricts the sum of public information and runs counter to our ‘profound national commitment
that debate on public issues should be uninhibited, robust, and wide-open.’”308
In fact, “[c]onstraining those who have funds or have been able to raise funds does not ease
the plight of those without funds in the first place . . . [and] even if one’s main concern is
slowing the increase in political costs, it may be more effective to rely on market forces to
achieve that result than on active legal intervention.” 309 According to Herbert Alexander, “[t]o
oppose limitations is not necessarily to argue that the sky’s the limit [because in] any campaign
there are saturation levels and a point where spending no longer pays off in votes per dollar.”310

III.C.
When private speech amounts
to election paraphernalia
_______________
306 See Joshua Cohen, Freedom of Expression, supra note 281 at p. 202 (1996), citing Buckley v. Valeo, 424 U.S. 1,
48-49 (1976).
307 See Joel L. Fleishman, Freedom of Speech and Equality of Political Opportunity: The Constitutionality of the
Federal Election Campaign Act of 1971, 51 N.C.L. Rev. 389, 453 (1973).
308 Id., at p. 454.
309 Id., at p. 479.
310 Id.
114
The scope of the guarantee of free expression takes into consideration the constitutional
respect for human potentiality and the effect of speech. It valorizes the ability of human beings to
express and their necessity to relate. On the other hand, a complete guarantee must also take into
consideration the effects it will have in a deliberative democracy. Skewed distribution of
resources as well as the cultural hegemony of the majority may have the effect of drowning out
the speech and the messages of those in the minority. In a sense, social inequality does have its
effect on the exercise and effect of the guarantee of free speech. Those who have more will have
better access to media that reaches a wider audience than those who have less. Those who
espouse the more popular ideas will have better reception than the subversive and the dissenters
of society. To be really heard and understood, the marginalized view normally undergoes its own
degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or
her expression. This view, thus, restricts laws or regulation that allows public officials to make
judgments of the value of such viewpoint or message content. This should still be the principal
approach.
However, the requirements of the Constitution regarding equality in opportunity must provide
limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates
or the members of their political parties or their political parties may be regulated as to time,
place, and manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press
Club v. COMELEC.
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
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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.
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.
For this purpose, it will not matter whether the speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the
principal message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law
— Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615
— if applied to this case, will not pass the test of reasonability. A fixed size for election posters
or tarpaulins without any relation to the distance from the intended average audience will be
arbitrary. At certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to the abridgement
of speech with political consequences.
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IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the circumvention of regulations
relating to election propaganda by applying such regulations to private individuals.314
Certainly, any provision or regulation can be circumvented. But we are not confronted with
this possibility. Respondents agree that the tarpaulin in question belongs to petitioners.
Respondents have also agreed, during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
property of petitioners. Their right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private property or
constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to
the constitu-
_______________

312 Const., Art. V, Sec. 1
314 Rollo, p. 81.
315 259 Phil. 707; 180 SCRA 218 (1989) [Per J. Regalado, En Banc].
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tional guaranties of due process and equal protection of the laws. (Citation omitted)
316

This court in Adiong held that a restriction that regulates where decals and stickers should be
posted is “so broad that it encompasses even the citizen’s private property.”317 Consequently, it
violates Article III, Section 1 of the Constitution which provides that no person shall be deprived
of his property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14 Amendment, protects these essential attributes.
th
Property is more than the mere thing which a person owns. It is elementary that it includes the right to
acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v.
Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use,
enjoyment, and disposal of a person’s acquisitions without control or diminution save by the law of the
land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley, 245 US 60 [1917]) 318

This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this right is joined by a
“liberty” interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of
elec-
_______________
316 Id., at pp. 721-722; pp. 231-232.

318 Id., at p. 721.
118
tion propaganda in any place, whether public or private, except in the common poster areas sanctioned
by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on
his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd,
there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or
regulation, may do. 319

Respondents ordered petitioners, who are private citizens, to remove the tarpaulin from their
own property. The absurdity of the situation is in itself an indication of the unconstitutionality of
COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s
infringement upon petitioners’ property rights as in the present case also reaches out to
infringement on their fundamental right to speech.
Respondents have not demonstrated that the present state interest they seek to promote
justifies the intrusion into petitioners’ property rights. Election laws and regulations must be
reasonable. It must also acknowledge a private individual’s right to exercise property rights.
Otherwise, the due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Elections Act intend to prevent the posting of
election propaganda in private property without the consent of the owners of such private
property. COMELEC has incorrectly implemented these regulations. Consistent with our ruling
in Adiong, we find that the act of respondents in seeking to restrain petitioners from posting the
tarpaulin in their own private property is an impermissible encroachments on the right to
property.
_______________
319 Id., at pp. 721-722.

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V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned
notice and letter violated the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise
of civil or political rights.

There are two aspects of this provision.321 The first is the nonestablishment clause.322 Second is
the free exercise and enjoyment of religious profession and worship.323
The second aspect is at issue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other
religious make such act immune
_______________
320 Const., Art. II, Sec. 6 provides that “[t]he separation of Church and State shall be inviolable.”
321 See Re: Request of Muslim Employees in the Different Courts in Iligan City (Re: Office Hours) , 514 Phil. 31, 38;
477 SCRA 648, 655 (2005) [Per J. Callejo, Sr., En Banc].
322 See Ebralinag v. The Division Superintendent of Schools of Cebu, supra note 148.
323 See Islamic Da’wah Council of the Philippines, Inc. v. Office of the Executive Secretary , 453 Phil. 440; 405
SCRA 497 (2003) [Per J. Corona, En Banc]. See also German v. Barangan, 220 Phil. 189; 135 SCRA 514 (1985)
[Per J. Escolin, En Banc].
120
from any secular regulation.324 The religious also have a secular existence. They exist within a
society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop
amounts to religious expression. This notwithstanding petitioners’ claim that “the views and
position of the petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably
connected to its Catholic dogma, faith, and moral teachings. . . .”325
The difficulty that often presents itself in these cases stems from the reality that every act can
be motivated by moral, ethical, and religious considerations. In terms of their effect on the
corporeal world, these acts range from belief, to expressions of these faiths, to religious
ceremonies, and then to acts of a secular character that may, from the point of view of others
who do not share the same faith or may not subscribe to any religion, may not have any religious
bearing.
Definitely, the characterizations of the religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of
Schools of Cebu326 in claiming that the court “emphatically” held that the adherents of a particular
religion shall be the ones to determine whether a particular matter shall be considered
ecclesiastical in nature.327 This court in Ebralinag exempted Jehovah’s Witnesses from
participating in the flag ceremony “out of respect for their religious beliefs, [no matter how]
“bizarre” those beliefs
_______________
324 See Pamil v. Teleron, 176 Phil. 51; 86 SCRA 413 (1978) [Per J. Fernando, En Banc].
325 Rollo, p. 13.
326 Ebralinag v. The Division Superintendent of Schools of Cebu, supra note 148.
327 Rollo, p. 140.
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may seem to others.”328 This court found a balance between the assertion of a religious
practice and the compelling necessities of a secular command. It was an early attempt at
accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies that
take religion specifically into account not to promote the government’s favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. As
Justice Brennan explained, the “government [may] take religion into account . . . to exempt, when
possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish.” 330

This court also discussed the Lemon test in that case, such that a regulation is constitutional
when: (1) it has a secular legislative purpose; (2) it neither advances nor inhibits relig-
_______________
328 Id., at p. 273.
329 455 Phil. 411; 408 SCRA 1 (2003) [Per J. Puno, En Banc] [CJ. Davide, Jr., JJ. Austria-Martinez, Corona,
Azcuna, Tinga, and Vitug, concurring; J. Bellosillo, concurring in the result; JJ. Panganiban, Ynares-Santiago, Carpio,
Carpio-Morales, Callejo, Sr., dissenting; JJ. Quisumbing and Sandoval-Gutierrez, On Official Leave].
330 Id., at pp. 522-523; p. 121, citing Michael W. McConnell, Accommodation of Religion: An Update and a
Response to the Critics, 60 (3) Geo. Wash. L. Rev. 685, 688 (1992).
122
ion; and (3) it does not foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, “does not convey any
religious doctrine of the Catholic church.”332 That the position of the Catholic church appears to
coincide with the message of the tarpaulin regarding the RH Law does not, by itself, bring the
expression within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to
candidates classified under “Team Patay” and “Team Buhay” according to their respective votes
on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support their claim that
the expression on the tarpaulin is an ecclesiastical matter. With all due respect to the Catholic
faithful, the church doctrines relied upon by petitioners are not binding upon this court. The
position of the Catholic religion in the Philippines as regards the RH Law does not suffice to
qualify the posting by one of its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin precludes any doubt as to its nature as
speech with political consequences and not religious speech.
Furthermore, the definition of an “ecclesiastical affair” in Austria v. National Labor Relations
Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil
courts as enumerated in the Austria case such as “proceedings for excommunication, ordinations
of religious ministers, administration
_______________
331 Estrada v. Escritor, supra note 329 at p. 506; pp. 106-107, citing Lemon v. Kurtzman, 403 U.S. 602, 612-613
(1971).
332 Rollo, p. 86.
333 371 Phil. 340; 312 SCRA 410 (1999) [Per J. Kapunan, First Division].
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of sacraments and other activities with attached religious significance.”334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty
in this case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities and reduce
spending among candidates and their registered political parties. It is not to regulate or limit the
speech of the electorate as it strives to participate in the electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who are running
for public office. Their message may be construed generalizations of very complex individuals
and party list organizations.
They are classified into black and white: as belonging to “Team Patay” or “Team Buhay.”
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a
single issue — and a complex piece of legislation at that — can easily be interpreted as an
attempt to stereotype the candidates and party list organizations. Not all may agree to the way
their thoughts were expressed, as in fact there are other Catholic dioceses that chose not to
follow the example of petitioners.
Some may have thought that there should be more room to consider being more broad-
minded and nonjudgmental. Some may have expected that the authors would give more space to
practice forgiveness and humility.
_______________
334 Id., at p. 353; pp. 421-422.

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But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental
liberties. It is not a detailed code that prescribes good conduct. It provides space for all to be
guided by their conscience, not only in the act that they do to others but also in judgment of the
acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the
minority. This can often be expressed by dominant institutions, even religious ones. That they
made their point dramatically and in a large way does not necessarily mean that their statements
are true, or that they have basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of
expression protected by our fundamental law. It is an expression designed to invite attention,
cause debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of
their ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the electorate
that tends to rouse the public to debate contemporary issues. This is not speech by candidates or
political parties to entice votes. It is a portion of the electorate telling candidates the conditions
for their election. It is the substantive content of the right to suffrage.
This is a form of speech hopeful of a quality of democracy that we should all deserve. It is
protected as a fundamental and primordial right by our Constitution. The expression in the
medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order
previously issued is hereby made permanent. The act of the COMELEC in issuing the assailed
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notice dated February 22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.
SO ORDERED.

Sereno (CJ.), Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez, Mendoza and Reyes,
JJ., concur.
Carpio, J., See Separate Concurring Opinion.
Velasco, Jr., J., I join the dissent of J. Brion.
Brion,** J., On Official Leave.
Peralta, J., I join J. Carpio’s Opinion.
Bersamin, J., I join the dissent of J. Brion.
Perlas-Bernabe, J., See Separate Concurring Opinion.
Jardeleza, J., No Part.
SEPARATE CONCURRING OPINION

CARPIO, J.:

I join the holding of the ponencia setting aside the “take down” notices1 sent by the
Commission on Elections (COMELEC) to petitioners. My concurrence, however, is grounded on
the fact that such notices, and the administrative and statutory provisions on which they are
based, are content-neutral regulations of general applicability repugnant to the Free Speech
Clause. Hence, I vote to strike down not only the COMELEC notices but also Section 6(c) of
COMELEC Resolution No. 9615, dated 15 January 2013 (Resolution 9615), the regulatory
basis for the COMELEC notices,
_______________
* * As per CJ. Sereno, J. Brion left his vote. See his Dissenting Opinion.

1 Dated 22 February 2013 and 27 February 2013.
126
and Section 3.3 of Republic Act No. 9006 (RA 9006), the statutory basis for Resolution
9615.

Section 3.3 of RA 9006, Section 6(c) of Resolution 9615, and the COMELEC Notices
Repugnant
to the Free Speech Clause

The COMELEC notices were based on Section 6(c) of Resolution 9615, dated 15 January
2013, which provides:
Lawful Election Propaganda. x x x.
Lawful election propaganda shall include:
x x x x
c. Posters made of cloth, paper, cardboard or any other material, whether framed or posted, with an
area not exceeding two feet (2’) by three feet (3’). (Emphasis supplied)

This provision is, in turn, based on Section 3.3 of RA 9006:
Lawful Election Propaganda. x x x.
For the purpose of this Act, lawful election propaganda shall include:
x x x x
3.3. Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two
(2) feet by three (3) feet x x x. (Emphasis supplied)

The COMELEC required petitioner Navarra to remove the streamer hanging within the
compound of the Roman Catholic church in Bacolod City because, at six by ten feet, it exceeded
the maximum size for election posters under Section 3.3 of RA 9006 as implemented by
Resolution 9615.
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Section 3.3 of RA 9006 and Section 6(c) of Resolution 9615, Regulations of General
Applicability

Section 3.3 of RA 9006 and its implementing rule for the 2013 elections, Section 6(c) of
Resolution 9615, are regulations of general applicability, covering campaign speech of all —
candidates, noncandidates, political parties and non-political parties. This conclusion is
compelled by the absence of any provision in RA 9006, and indeed, in any related statutes,
limiting their application only to the campaign speech of candidates and political parties. On the
contrary, the penal clause of RA 9006 is couched in broad language encompassing within its
ambit anyone who breaches its provisions: “[v]iolation of th[e] Act and the rules and regulations
of the COMELEC issued to implement [it] shall be an election offense punishable under the first
and second paragraphs of Section 264 of the Omnibus Election Code.” 2 Indeed, RA 9006
regulates a host of other campaign related acts, such as the airing and printing of paid political
ads (Section 3.4 in relation to Section 4) and the conduct of election surveys (Section 5),
which involve not only political parties and candidates but also other individuals or entities
who fall within the ambit of these provisions. RA 9006 is a generally applicable law as much
as the Omnibus Election Code is in the field of election propaganda regulation.
To hold the COMELEC without authority to enforce Section 3.3 of RA 9006 against
noncandidates and non-political parties, despite the absence of any prohibition under that law, is
not only to defeat the constitutional intent behind the regulation of “minimiz[ing] election
spending”3 but also to open a backdoor through which candidates and political parties can
indirectly circumvent the myriad campaign speech regula-
_______________
2 Section 13, third paragraph.

3 Article IX-C, Section 2(7), Constitution.
128
tions the government adopted to ensure fair and orderly elections.
“Election spending” refers not only to expenses of political parties and candidates but
also to expenses of their supporters. (Otherwise, all the limitations on election spending and
on what constitutes lawful election propaganda would be meaningless). Freeing non-
candidates and non-parties from the coverage of RA 9006 allows them to (1) print campaign ad
banners and posters of any size and in any quantity, (2) place TV and radio ads in national and
local stations for any length of time, and (3) place full-page print ads in broadsheets, tabloids and
related media. Obviously, printing posters of any size, placing full-page print ads, and running
extended broadcast ads all entail gargantuan costs.4 Yet, under the ponencia’s holding, so long as
these are done by noncandidates and nonpolitical parties, the state is powerless to regulate them.
The second evil which results from treating private campaign speech as absolutely protected
(and thus beyond the power of the state to regulate) is that candidates and political parties, faced
with the limitations on the size of print ads and maximum airtime for TV and radio ads under RA
9006, will have a ready means of circumventing these limitations by simply channeling their
campaign propaganda activities to supporters who do not happen to be candidates or political
parties. Thus, voters during an election season can one day wake up to find print media and
broadcast airwaves blanketed with political ads, running full-page and airing night and day,
respectively, to promote certain candidates, all paid for by a noncandidate billionaire supporter.
Such bifurcated application of RA 9006’s limitations on the sizes of print ads
_______________
4 For selected TV and radio broadcast rates during the 2013 elections, see GMA Network, Inc. v. Commission on
Elections, G.R. No. 205357, 2 September 2014, 734 SCRA 88 (Carpio, J., concurring).
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(Section 6.15) and maximum broadcast time for TV and radio campaign ads (Section 6.2 6)
defeats the purpose of regulating campaign speech.

Section 3.3 of RA 9006 and Section 6(c) of Resolution 9615, Content-Neutral Regulations
which impermissibly restrict Freedom of Speech

Section 3.3 of RA 9006 and Section 6(c) of Resolution 9615 regulate campaign posters by
limiting their size to two by three feet, regardless of what is printed on the face of the
posters. These provisions are classic examples of content-neutral regulations which restrict
the manner by which speech is relayed but not the content of what is conveyed. Thus, the
notices sent by the COMELEC to petitioner Navarra required the latter to remove the streamer in
question not because it contained a message favoring and disfavoring certain senatorial
candidates who ran in the last elections but because the streamer, taking into account existing
law, was “oversized.”
Testing the validity of content-neutral regulations like the statutory and administrative
provisions in question, requires analysis along four prongs, namely, whether (1) they are
_______________
5 This provides: “Print advertisements shall not exceed one-fourth (1/4) page, in broadsheet and one-half (1/2) page
in tabloids thrice a week per newspaper, magazine or other publications, during the campaign period.”
6 This provides, in relevant parts: “(a) Each bona fide candidate or registered political party for a nationally elective
office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred
eighty (180) minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more
than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or
donation.”
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within the constitutional power of the government; (2) they further 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 is essential to the furtherance of that interest.7 The level of interest required of the
government to justify the validity of content-neutral regulations — “important or substantial” —
is lower than the most stringent standard of “compelling interest” because such regulations are
“unrelated to the suppression of free expression.”8 Proof of compelling interest is required of the
government only in the scrutiny of content-based regulations which strike at the core of the
freedoms of speech, of expression and of the press protected by the Free Speech
Clause.9 Nevertheless, content-neutral regulations may still fail constitutional muster if “the
incidental restriction on [expressive] freedoms is x x x greater than is essential to the
furtherance” of the proffered government interest.10
No serious objections can be raised against the conclusion that it was within the government’s
constitutional powers to adopt Section 3.3 of RA 9006 and Section 6(c) of Resolution 9615. Nor
is there any quarrel that these regulations advance the important and substantial government
interests of “minimiz[ing] election spending” and ensuring orderly elections in light of
unmistakable connection between the size of
_______________
7 These are commonly referred to as the four prongs of the O’Brien test from United States v. O’Brien, 391 U.S. 367
(1968), which has been adopted in this jurisdiction (see Osmeña v. COMELEC, 351 Phil. 692; 228 SCRA 447
(1998); Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571; 357 SCRA 496 (2001).
8 Osmeña v. COMELEC, id.
9 See Texas v. Johnson, 491 U.S. 397 (1989).
10 See Social Weather Stations, Inc. v. COMELEC, supra, (striking down Section 5.4 of RA 9006 for failing the third
and fourth prongs of the O’Brien test).
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campaign posters, on the one hand, and the overall cost of campaigns and orderly
dissemination of campaign information, on the other hand. As these interests relate to the
reduction of campaign costs and the maintenance of order, they are also “unrelated to the
suppression of free expression.” It is in the extent of the incidental restriction wrought by these
regulations on expressive freedoms where they ran afoul with the Free Speech Clause.
As crafted, Section 3.3 of RA 9006 provides a uniform and fixed size for all campaign
posters, two by three feet,11 irrespective of the location where the posters are placed in relation to
the distance from the nearest possible viewer. Thus, whether placed at a common poster area,
at the gate of a residential house or outside a 30 th floor condominium unit, the campaign
poster must be of the same size. However, when placed at the 30th floor of a condominium, the
letters in a two by three feet poster would be so small that they would no longer be readable from
the ground or from the street.
A space of two by three feet can only accommodate so much number of letters of a particular
size to be reasonably visible to the reader standing from a certain distance. Even if only the name
of a single candidate, the position he seeks, and his party affiliation are printed on the poster, the
limited space available allows the printing of these data using letters of relatively small size,
compared with those printed in a larger canvass. The size of the letters inevitably shrinks if more
names and data are added to the poster.
The practical effect of the fixed-size rule under Section 3.3 of RA 9006 (and its implementing
rule) is to further narrow the choices of poster locations for anyone wishing to display
_______________
11 The dimensions for streamers for display during rallies or announcing its holding are different (three by eight feet)
(Section 3.3).
132
them in any of the venues allowed by law.12 Voters who wish to make known to the public
their choice of candidates (or for that matter, candidates who wish to advertise their candidacies)
through the display of posters are precluded from doing so from certain areas not because these
areas are off-limits but because, for reasons of geography vis-à-vis the size of the poster, their
contents simply become illegible. Such restriction on campaign speech appears to me to be
“greater than is essential” to advance the important government interests of minimizing election
spending and ensuring orderly elections. To satisfy the strictures of the Free Speech Clause,
Congress needs to craft legislation on the sizing of campaign posters and other paraphernalia
with sufficient flexibility to address concerns inherent in the present fixed-dimension model.
Accordingly, I vote to GRANT the petition and DECLARE UNCONSTITUTIONAL (1)
Section 3.3 of Republic Act No. 9006; (2) Section 6(c) of COMELEC Resolution No. 9615,
dated 15 January 2013; and (3) the notices, dated 22 February 2013 and 27 February 2013, of the
Commission on Elec-
_______________
12 E.g., Section 9 of RA 9006 which provides:

Posting of Campaign Materials.—The COMELEC may authorize political parties and party list groups to erect
common poster areas for their candidates in not more than ten (1) public places such as plazas, markets, barangay centers
and the like, wherein candidates can post, display or exhibit election propaganda: Provided, That the size of the poster
areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more
than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in
public places or property which shall be allocated equitably and impartially among the candidates.
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tions for being violative of Section 4, Article III of the Constitution.

DISSENTING OPINION

BRION, J.:

Prefatory Statement

The present case asks us to determine whether respondent Commission on Elections
(Comelec) should be prevented from implementing the size restrictions in Republic Act No.
9006 (RA 9006, otherwise known as the Fair Elections Act) to the six by ten feet tall tarpaulin
posted by petitioner Diocese of Bacolod containing the message “RH LAW IBASURA” during
the election period.
The ponente opts to give due course to the petition despite obvious jurisprudential, practical
and procedural infirmities that will prejudicially impact on established rules to the detriment of
the electoral process; that confuses the lines between right of free speech and election
propaganda; and that inordinately disregards constitutional electoral values through its misplaced
views on the right to free speech — a right that can exist only if this country continues to be a
democratic one where leaders are elected under constitutionally established electoral values and
orderly processes.
Thus, the ponente declares as unconstitutional Section 3.3 of RA 9006, and its implementing
rule, Section 6(c) of Comelec Resolution No. 9615, for violating the freedom of speech. In so
doing, it classifies the size restrictions in RA 9006 as a content-based regulation and applied the
strict scrutiny test to a regulation of a poster’s size.
In my view, the petition prematurely availed of the Court’s power of judicial review BY
OPENLY DISREGARDING ESTABLISHED COMELEC PROCESSES BY BYPASSING
THE COMELEC EN BANC. This is a legal mortal sin that will sow
134
havoc in future cases before this Court. The petition consequently failed to show any prima
facie case of grave abuse of discretion on the part of the Comelec, as it had not yet finally
decided on its course of action.
Most importantly, the issues the petition presents have now been MOOTED and do not now
present any LIVE CONTROVERSY. The Court will recall that we immediately issued a
temporary restraining order to halt further Comelec action, so that the petitioner was effectively
the prevailing party when the elections — the critical time involved in this case — took place.
Subsequently, the interest advocated in the disputed tarpaulin was decided by this Court to the
satisfaction of the public at large, among them the Church whose right to life views prevailed.
THESE ARE CIRCUMSTANCES THAT SHOULD DISSUADE THIS COURT FROM
RULING ON A CASE THAT WEIGHS THE RIGHTS OF FREE SPEECH AND
DEMOCRATIC ELECTORAL VALUES.
A point that should not be missed is that the disputed tarpaulin is covered by regulations
under RA 9006, as it falls within the definition of election propaganda. The key in determining
whether a material constitutes as election propaganda lies in whether it is intended to promote
the election of a list of candidates it favors and/or oppose the election of candidates in
another list. RA 9006 did not, as the ponente infers, require that the material be posted by, or in
behalf of the candidates and/or political parties.
Lastly, the assailed law is a valid content-neutral regulation on speech, and is thus not
unconstitutional. The assailed regulation does not prohibit the posting of posters; does not limit
the number of allowable posters that may be posted; and does not even restrict the place where
election propaganda may be posted. It only regulates the posters’ size.
To reiterate, our decision in the present case sets the tone in resolving future conflicts
between the values before us. While freedom of speech is paramount, it does have its limits. We
should thus be careful in deciding the present case, such
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that in recognizing one man’s right to speak, we do not end up sacrificing the ideals in which
our republican, democratic nation stands upon.
IN SUM, THE MORE PRUDENT APPROACH FOR THIS COURT IS TO SIMPLY
DISMISS THE PETITION FOR MOOTNESS AND PROCEDURAL INFIRMITIES, AND TO
PROCEED TO THE WEIGHING OF CONSTITUTIONAL VALUES IN A FUTURE LIVE
AND MORE APPROPRIATE CASE WHERE OUR RULING WILL CLARIFY AND
ELUCIDATE RATHER THAN CONFUSE.

I. Factual Antecedent

This case reached us through a special civil action for certiorari and prohibition with
application for preliminary injunction and temporary restraining order under Rule 65 of the
Rules of Court. The petition assails the Comelec’s Notice to Remove Campaign Materials that
it issued through Election Officer Mavil V. Majarucon on February 22, 2013, and through
Comelec Law Director Esmeralda Amora-Ladra on February 27, 2013.
The assailed notices direct the petitioners to remove the tarpaulin (subject poster) they placed
within a private compound housing at the San Sebastian Cathedral of Bacolod on February 21,
2013 for exceeding the size limitations on election propaganda. The notice dated February 27,
2013 warned the petitioners that the Comelec Law Department would be forced to file an
election offense case against them if the subject poster would not be removed.
The petitioners responded by filing the present petition assailing the two notices the Comelec
sent to them on the ground that the poster is not a campaign material, and is hence outside the
coverage of Comelec Resolution No. 9615. The petitioners also supported their position by
invoking their rights to freedom of expression and freedom of religion.
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II. Procedural Arguments

A. Reviewability of the assailed notices as an administrative act of the Comelec

The ponente posits that a judicial review of the size limitations under RA 9006 is necessary,
as it has a chilling effect on political speech. According to the ponente, the present petition has
triggered the Court’s expanded jurisdiction since the Comelec’s letter and notice threaten the
fundamental right to speech.
To be sure, the concept of judicial power under the 1987 Constitution recognizes its (1)
traditional jurisdiction to settle actual cases or controversies; and (2) expanded jurisdiction to
determine whether a government agency or instrumentality committed a grave abuse of
discretion.1 The exercise of either power could pave the way to the Court’s power of judicial
review, the Court’s authority to strike down acts of the legislative and/or executive,
constitutional bodies or administrative agencies that are contrary to the Constitution.2
Judicial review under the traditional jurisdiction of the Court requires the following
requirements of justiciability: (1) there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must have the standing to question
the validity of the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result
of its enforcement; (3) the question of constitutionality must be
_______________
1 See J. Brion’s discussion on the Power of Judicial Review in his Concurring Opinion in Imbong v. Ochoa, Jr., G.R.
No. 204819, April 8, 2014, 721 SCRA 146, 487-489.
2 Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009, 583 SCRA 119, 128-129.
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raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case.3
Failure to meet any of these requirements justifies the Court’s refusal to exercise its power of
judicial review under the Court’s traditional power. The Court, however, has, in several
instances, opted to relax one or more of these requirements to give due course to a petition
presenting issues of transcendental importance to the nation.
In these cases, the doctrine of transcendental importance relaxes the standing requirement,
and thereby indirectly relaxes the injury embodied in the actual case or controversy requirement.
Note at this point that an actual case or controversy is present when the issues it poses are ripe
for adjudication, that is, when the act being challenged has had a direct adverse effect on the
individual challenging it. Standing, on the other hand, requires a personal and substantial
interest manifested through a direct injury that the petitioner has or will sustain as a result of the
questioned act.
Thus, when the standing is relaxed because of the transcendental importance doctrine, the
character of the injury presented to fulfill the actual case or controversy requirement is likewise
tempered. When we, for instance, say that the petitioners have no standing as citizens or as
taxpayers but we nevertheless give the petition due course, we indirectly acknowledge that the
injury that they had or will sustain is not personally directed towards them, but to the more
general and abstract Filipino public.
A readily apparent trend from jurisprudence invoking the transcendental importance doctrine
shows its application in cases where the government has committed grave abuse of discretion
amounting to lack of, or excess of jurisdiction. This
_______________
3 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35; and Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., 460 Phil. 830, 842; 415 SCRA 44, 133
(2003).
138
strong correlation between the exercise of the Court’s expanded jurisdiction and its use of the
transcendental importance doctrine reflects the former’s distinct nature and origin. The Court’s
expanded jurisdiction roots from the constitutional commissioners’ perception of the political
question doctrine’s overuse prior to the 1987 Constitution, a situation that arguably contributed
to societal unrest in the years preceding the 1987 Constitution.
The political question doctrine prevents the Court from deciding cases that are of a political
nature, and leaves the decision to the elected-officials of government. In other words, the Court,
through the political question doctrine, defers to the judgment and discretion of the Executive
and Legislature, matters that involve policy because they are the people’s elected officials and
hence are more directly accountable to them.
The 1987 Constitution, recognizing the importance of the Court’s active role in checking
abuses in government, relaxed the political question doctrine and made it a duty upon the Court
to determine whether there had been abuses in the government’s exercise of discretion and
consequently nullify such actions that violate the Constitution albeit in the narrow and limited
instances of grave abuse of discretion. Thus, when a government agency’s exercise of discretion
is so grave as to amount to an excess or lack of jurisdiction, it becomes the duty to step in and
check for violations of the Constitution. In these instances, the political question doctrine cannot
prevent the Court from determining whether the government gravely abused its jurisdiction,
against the back drop of the Constitution.
Necessarily, the government’s act of grave abuse of discretion, more so if it has nationwide
impact, involves a matter of transcendental importance to the nation. On the other hand, when
the government’s act involves a legitimate exercise of discretion, or amounts to an abuse of
discretion that is not grave, then the need to temper standing requirements
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through the transcendental importance doctrine is not apparent.
This correlation between the Court’s use of the transcendental doctrine requirement and its
eventual exercise of the power of judicial review under its expanded jurisdiction warrants a
review, prima facie, of whether there had been a grave abuse of discretion on the part of
government. Where there is a showing prima facie of grave abuse, the Court relaxes its locus
standi requirement (and indirectly its actual case or controversy requirement) through the
transcendental importance doctrine. Where there is no showing of prima facie grave abuse, then
the requirements of justiciability are applied strictly.
Thus, translated in terms of the Court’s expanded jurisdiction, the actual case or controversy
requirement is fulfilled by a prima facie showing of grave abuse of discretion. This approach
reflects the textual requirement of grave abuse of discretion in the second paragraph of Article
VIII, Section 1 of the 1987 Constitution. As I have earlier pointed out in my separate opinion
in Araullo v. Aquino, justiciability under the expanded judicial power expressly and textually
depends only on the presence or absence of grave abuse of discretion, as distinguished from a
situation where the issue of constitutional validity is raised within a “traditionally” justiciable
case which demands that the requirement of actual controversy based on specific legal rights
must exist.
That a case presents issues of transcendental importance, on the other hand, justifies direct
resort to this Court without first complying with the doctrine of hierarchy of courts.
A review of the petition shows that it has failed to show a prima facie case of grave abuse of
discretion on the part of the Comelec.
The petition characterizes the notices as administrative acts of the Comelec that are outside
the latter’s jurisdiction to perform. The Comelec’s administrative function refers to
140
the enforcement and administration of election laws. Under Section 2(6), Article IX-C of the
Constitution, the Comelec is expressly given the power to “prosecute cases of violations of
election laws, including acts or omissions constituting election frauds, offenses, and
malpractices.” The constitutional grant to the Comelec of the power to investigate and to
prosecute election offenses as an adjunct to the enforcement and administration of all election
laws is intended to enable the Comelec to effectively ensure to the people the free, orderly, and
honest conduct of elections.4
This administrative function is markedly distinct from the Comelec’s two other powers as an
independent government agency established under the 1987 Constitution, i.e., its quasi-
legislative power to issue rules and regulations to implement the provisions of the 1987
Constitution,5 the Omnibus Election Code,6 and other election laws;7 and its quasi-
_______________
4 Pimentel, Jr. v. COMELEC, 352 Phil. 424; 289 SCRA 586 (1998).
5 Article IX-C, Section 2 of the 1987 Constitution provides:
Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall. x x x
6 Sec. 52. Powers and functions of the Commission on Elections.—In addition to the powers and functions
conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration
of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall:
x x x x
(c) Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission
is required to enforce and administer, and require the payment of legal fees and collect the same in payment of any
business done in the Commission, at rates that it may provide and fix in its rules and regulations.
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judicial power to resolve controversies arising from the enforcement of election laws, and to
be the sole judge of all pre-proclamation controversies and of all contests relating to the
elections, returns, and qualifications.8
The nature of the assailed action of the Comelec is essential to determine the proper remedy
by which a review of its actions can reach this Court. As a general rule, an administrative order
of the Comelec is not an appropriate subject of a special civil action for certiorari.9
Through jurisprudence, the Court has clarified that the petition for certiorari under Rule 64 in
relation to Rule 65 of the Rules of Court covers only the Comelec’s quasi-judicial functions. 10
By reason of its distinct role in our scheme of government, the Comelec is allowed considerable
latitude in devising means and methods to ensure the accomplishment of the great objective for
which it was created — free, orderly and
_______________
x x x. See Bedol v. Commission on Elections, G.R. No. 179830, December 3, 2009, 606 SCRA 554.
7 See, for instance, Section 26, Rep. Act No. 8436.
8 Section 2. The Commission on Elections shall exercise the following powers and functions: x x x
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of
all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of
limited jurisdiction.
Decisions, final orders, or rulings of the Commission on Elections contests involving elective municipal
and barangay offices shall be final, executory, and not appealable.
9 Macabago v. Commission on Elections, G.R. No. 152163, November 18, 2002, 392 SCRA 178.
10 Jalosjos v. Commission on Elections, G.R. No. 205033, June 18, 2013, 698 SCRA 742, 752-753.
142
honest elections.11 The Court recognizes this reality and concedes that it has no general
powers of supervision over the Comelec except those specifically granted by the
Constitution, i.e., to review its decisions, orders and rulings within the limited terms of a petition
for certiorari.12
Thus, the Court reviews Comelec’s administrative acts only by way of exception, when it
acts capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of
jurisdiction. Necessarily, this invokes the Court’s expanded jurisdiction under the second
paragraph of Article VIII, Section 1.
That there is an alleged grave abuse of discretion on the part of Comelec, however, does not
automatically mean that the petition should be given due course. It has to meet the requirements
of justiciability which, under the terms of the Court’s expanded judicial power, has been
translated to mean a prima facie showing of a governmental entity, office or official granted
discretionary authority to act and that this authority has been gravely abused. There can be
no prima facie showing of grave abuse of discretion unless something has already been done13 or
has taken place under the law14 and the petitioner sufficiently alleges the existence of a
_______________
11 Sumulong v. Commission on Elections, 73 Phil. 288, 294-295 (1941), cited in Espino v. Zaldivar, 129 Phil. 451,
474; 21 SCRA 1204, 1224 (1967).
12 Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 405 SCRA 614.
13 In the case of a challenged law or official action, for instance, the Court will not consider an issue ripe for judicial
resolution, unless something had already been done. Imbong v. Ochoa, Syjuico v. Abad; Bayan Telecommunications v.
Republic.
14 Mariano, Jr. v. Commission on Elections, G.R. No. 118577, March 7, 1995, 242 SCRA 211.
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threatened or immediate injury to itself as a result of the gravely abusive exercise of
discretion.15
In the case of an administrative agency (more so, if it involves an independent constitutional
body), a matter cannot be considered ripe for judicial resolution unless administrative remedies
have been exhausted.16 Judicial review is appropriate only if, at the very least, those who have
the power to address the petitioner’s concerns have been given the opportunity to do so. In
short, the requirement of ripeness does not become less relevant under the courts’ expanded
judicial power.
In this light, I find it worthy to note that that the petition challenges RA 9006 and Comelec
Resolution No. 9615 not because its text, on its face, violates fundamental rights,363 but
because Comelec erroneously applied an otherwise constitutional law. Comelec’s
administrative act of including the petitioners’ poster within the coverage of
_______________
15 Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel, 589 Phil. 463, 481; 568
SCRA 402, 451 (2008).
16 See Corales v. Republic, G.R. No. 186613, August 27, 2013, 703 SCRA 623.
17 This is in contrast to my discussion of a prima facie grave abuse of discretion in Imbong v. Ochoa, Jr. In Imbong,
the petition alleged (and the Court eventually concluded) that the text of the Reproductive Health Law violates the right to
life of the unborn child in the Constitution. Congress, in enacting a law that violates a fundamental right, committed a
grave abuse of discretion. Thus, citizens have an interest in stopping the implementation of an unconstitutional law that
could cause irreparable injury to the countless unborn.
The constitutionality of the text of RA 9006, on the other hand, is not in question in the present case. What the
petitioners assail is their inclusion within the coverage of election propaganda regulations in RA 9006 and Comelec
Resolution No. 9615.
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Comelec Resolution No. 9615 allegedly violated their constitutional rights to freedom of
speech and religion.
This issue could have been best decided by the Comelec, had the petitioners followed the
regular course of procedure in the investigation and prosecution of election offense cases.
The assailed action of Comelec, after all, contained a warning against possible prosecution for
an election offense that would have had to undergo an entire process before it is filed before
the proper tribunal. This process allows suspected election offenders to explain why an election
offense should not be filed against them, and for the Comelec to consider the explanation.
Comelec Resolution No. 9386 (Rules of Procedure in the Investigation and Prosecution of
Election Offense Cases in the Commission on Elections), in particular, provides that once a
complaint is initiated, an investigating officer would have to conduct a preliminary investigation
to determine whether it warrants prosecution. At this stage, the respondent(s) to the complaint
may submit his counter-affidavit and other supporting documents for the complaint’s dismissal.18
The investigating officer may also hold a hearing
_______________
18 Section 6 of Comelec Resolution No. 9386 provides:

Section 6. Conduct of Preliminary Investigation.—Within ten (10) days from receipt of the Complaint, the
investigating officer shall issue a subpoena to the respondent/s, attaching thereto a copy of the Complaint, Affidavits and
other supporting documents, giving said respondent/s ten (10) days from receipt within which to submit Counter-
Affidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by
the complainant. Otherwise, the Investigating officer shall dismiss the Complaint if he finds no ground to continue with
the inquiry. Such Counter-Affidavits and other supporting evidence submitted by the respondent shall be furnished by the
latter to the complainant.
If the respondent cannot be subpoenaed, or if subpoenaed, does not submit Counter-Affidavits within the ten (10) day
period, the inves-
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to propound clarificatory questions to the parties and their
_______________
tigating officer shall base his Resolution on the evidence presented by the complainant.
If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory
questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present, but
without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating
officer which the latter may propound to the parties or parties or witnesses concerned.
Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within
thirty (30) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there
is sufficient ground to hold the respondent for trial.
Where the respondent is a minor, the investigating officer shall not conduct the preliminary investigation unless the
child respondent shall have first undergone the requisite proceedings before the Local Social Welfare Development
Officer pursuant to Republic Act No. 9344, otherwise known as the “Juvenile Justice and Welfare Act of 2006.”
No motion, except on the ground of lack of jurisdiction or request for extension of time to submit Counter-Affidavits
shall be allowed or granted except on exceptionally meritorious cases. Only one (1) Motion for Extension to file Counter-
Affidavit for a period not exceeding ten (10) days shall be allowed. The filing of Reply-Affidavits, Rejoinder-Affidavits,
Memoranda and similar pleadings are likewise prohibited.
A Memorandum, Manifestation or Motion to Dismiss is a prohibitive pleading and cannot take the place of a Counter-
Affidavit unless the same is made by the respondent himself and verified.
When an issue of a prejudicial question is raised in the Counter-Affidavit, the investigating officer shall suspend
preliminary investigation if its existence is satisfactorily established. All orders suspending the preliminary investigation
based on existence of prejudicial question issued by the investigating officer shall have the written approval of the
Regional Election Director or the Director of the Law Department, as the case may be.
146
witnesses. The parties may even submit questions to the investigating officer, which the latter
may propound to the parties or parties or witnesses concerned.19
After preliminary investigation, the investigating officer has two options: if he finds no cause
to hold the respondent for trial, he shall recommend the dismissal of the complaint; otherwise,
he shall prepare a recommendation to prosecute, and the corresponding Information.20
Whichever course he takes, the investigating officer is required to forward the records of the
case to the Commission En Banc (in cases investigated by the Law Department or the Regional
Election Director) or to the Regional Election Director (in cases investigated by the Assistant
Regional Election Director, Regional Election Attorney, or Provincial Election Supervisor or any
of the Commission’s lawyers assigned in the field office) for their approval or disapproval. In
the latter case, the resolution of the Regional Election Director may be subject of a motion for
reconsideration and, if need be, a petition for review with the COMELEC En Banc.21
In the case before us, the petitioners ask us to exercise our power of judicial review over the
action of the COMELEC’s Election Officer, Mavil Majarucon, who ordered the petitioners to
remove the subject poster, and over the action of Director Esmeralda Amora-Ladra of the
Comelec Law Department, reiterating the previous order with a warning of possible criminal
prosecution — without any other action by the Comelec at its higher levels as the established
procedures provide.
Contrary to the petitioners’ allegation that they “have no other plain, speedy, and adequate
remedy, the above de-
_______________
19 Comelec Resolution No. 9386, Section 6.

20 Id., Section 8.
21 Id., Sections 11 and 12.
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scribed procedure before the Comelec clearly shows otherwise. By immediately invoking
remedies before this Court, the petitioners deprived the Comelec itself of the opportunity to
pass upon the issue before us — a procedure critical in a certiorari proceeding. In short, the
direct invocation of judicial intervention is clearly premature.
In the interest of orderly procedure and the respect for an independent constitutional
commission such as the Comelec, on matters that are prima facie within its jurisdiction, the
expansion of the power of judicial review could not have meant the power to review any and
all acts of a department or office within an administrative framework.
While I agree with the ponencia that Section 2(3), Article IX-C does not grant the Comelec
the power to determine “any and all” issues arising during elections, the Comelec under this
provision can certainly decide whether to initiate a preliminary investigation against the
petitioners. It can decide based on the arguments and pieces of evidence presented during the
preliminary investigation — whether there is probable cause to file an information for an election
offense against the petitioners. This determination is even subject to review and reconsideration,
as discussed in the above described process.
To be sure, this is a matter that the Comelec should have been given first an opportunity to
resolve before the petitioners directly sought judicial recourse. While the freedoms invoked by
the petitioners certainly occupy preferential status in our hierarchy of freedoms, the Court cannot
second-guess what the Comelec’s action would have been, particularly when the matters before
us are nothing more than the Election Officer Majarucon’s notice and the Director Amora-
Ladra’s order.
In these lights, I see no occasion to discuss the traditional rules on hierarchy of
courts and transcendental impor-
148
tance, which only concern the propriety of a direct resort to the Supreme Court instead of the
lower courts, and not the question of whether judicial intervention is proper in the first place. As
I concluded above, the direct invocation of judicial intervention is as yet premature.

B. The petition is already
moot and academic

Aside from the petition’s premature recourse to the Court, the legal issues it presents has
already become moot and academic.
A petition becomes moot and academic when it “ceases to present a justiciable controversy
by virtue of supervening events, so that a declaration thereon would be of no practical use or
value.”22 A case becomes moot and academic when there is no more actual controversy between
the parties, or no useful purpose can be served in passing upon the merits.23
The passage of the election period has effectively made the issues in the present petition moot
and academic. Any decision on our part — whether for the validity or invalidity of the
Comelec’s actions would no longer affect the rights of either the petitioners to post the subject
posters, or the Comelec to prosecute election offenses.
_______________
22 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 213-214, citing Province of
Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, Banco Filipino Savings and Mortgage Bank v.
Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129, Vda. de Dabao v. Court of Appeals, G.R. No. 116526,
March 23, 2004, 426 SCRA 91, Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA
590, Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21
and Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
23 Tantoy, Sr. v. Abrogar, 497 Phil. 615; 458 SCRA 301 (2005).
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The present petition had been filed to assail an administrative act of the Comelec, which
warned the petitioners of a possible prosecution should they continue posting election
propaganda that do not comply with the size requirements under RA 9006. The Letter issued by
Comelec Director Amora-Ladra, in particular, advised compliance with the size requirements,
otherwise it would file an election case against them. Thus, as per the Comelec’s Letter,
prosecution of the offense would commence only if the petitioners continued posting the poster
without complying with the size requirements. Had the petitioners complied with the size
requirements for their poster, no election offense would have been filed against them.
The petitioners, upon receipt of the letter, immediately filed a petition for certiorari before
the Court the next day. Five days later, they were granted a temporary restraining order that
forbade the Comelec from enforcing its Notice and Letter. At this point, the Comelec had not yet
implemented the warning it gave the petitioners in its Letter. Thus, the temporary restraining
order effectively prevented the Comelec’s Letter from being enforced. At the time the TRO
prevented the enforcement of the Comelec’s Letter, the petitioners could have still exercised the
choice of complying with the Comelec’s Notice and Letter, and hence avoided the initiation of
an election offense against them. This choice had never been exercised by the petitioners as the
temporary restraining order forbade the Notice and Letter’s implementation, and effectively
allowed them to continue posting the subject posters without threat of prosecution.
In the meantime, the election period, during which the election offense of illegally posting
election propaganda may be committed and prosecuted, came to pass. Thus, our decision in this
case, and the consequent lifting of the temporary restraining order against the Comelec, could no
longer affect the rights of the petitioners. At this point in time, our ruling regarding the validity
of the Comelec’s Notice and Letter
150
(whether for its validity or invalidity) would no longer have any impact on the petitioners and
respondent.
To be sure, the issue of the constitutionality of the poster’s size limitations, as well as the
inclusion of speech of private individuals are issues capable of repetition, as elections are held
every three years.
But while these issues are capable of repetition, they most certainly cannot escape review.
The administrative process outlined in Comelec Resolution No. 9615 provides a process through
which the Comelec may decide these issues with finality. After the Comelec had been allowed to
exercise its jurisdiction to the fullest, judicial review of its actions may be availed of through a
petition for certiorari under the Rules of Court. At that point, the issues would certainly no
longer be premature.

III. Substantive Arguments: Section 3.3 of RA 9006 and Section 6(c) of Comelec
Resolution No. 9615 are valid content-neutral regulations on election propaganda

Even assuming that the Court can give due course to the present petition, I strongly disagree
with the ponencia’s finding that the notices, as well as the regulations they enforce, are
unconstitutional for violating the petitioners’ right to free speech.
According to the ponencia, the Comelec’s attempt to enforce Comelec Resolution No. 9615 is
a content-based regulation that is heavily burdened with unconstitutionality. Even assuming that
the letter and notice contain a content-neutral regulation, the ponencia asserts that it still fails to
pass the intermediate test of constitutionality.
The letter and notice sent by the Comelec’s legal department both sought to enforce the size
restrictions on election propaganda applicable to the subject poster. The
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Comelec advised the petitioners to comply with these size restrictions or take down the
poster, or else it would be compelled to file an election offense against him. Thereby, the
Comelec recognized that it would not have any cause of action or complaint if only the
petitioners would comply with the size restriction.
The size restrictions are found in Comelec Resolution No. 9615, which implements Section 3
of the Fair Elections Act. Section 3.3 of the Fair Elections Act and Section 6(c) of Comelec
Resolution No. 9615 mandate that posters containing election propaganda must not exceed an
area of two by three feet.
Three queries must be resolved in determining the legality of Comelec’s letter and notice:
First, whether the subject poster falls within the election propaganda that may be regulated by
the Comelec;
Second, whether the size restrictions in Comelec Resolution No. 9615 and RA 9006 impose
content-neutral or content-based restrictions on speech; and
Third, whether this regulation pass the appropriate test of constitutionality.

A. The subject poster falls within the regulated election propaganda in RA 9006 and
Comelec Resolution No. 9615

The subject poster carries the following characteristics:
(1) It was posted during the campaign period, by private individuals and within a private
compound housing at the San Sebastian Cathedral of Bacolod.
(2) It was posted with another tarpaulin with the message “RH LAW IBASURA.”
152
(3) Both tarpaulins were approximately six by ten feet in size, and were posted in front of the
Cathedral within public view.
(4) The subject poster contains the heading “conscience vote” and two lists of senators and
members of the House of Representatives. The first list contains names of legislators who voted
against the passage of the Reproductive Health Law, denominated as Team Buhay. The second
list contains names of legislators who voted for the RH Law’s passage, denominated as “Team
Patay.” The “Team Buhay” list contained a check mark, while the Team Patay list an X mark.
All the legislators named in both lists were candidates during the 2013 national elections.
(5) It does not appear to have been sponsored or paid for by any candidate.
The content of the tarpaulin, as well as the timing of its posting, makes it subject of the
regulations in RA 9006 and Comelec Resolution No. 9615.
Comelec Resolution No. 9615 contains rules and regulations implementing RA 9006 during
the 2013 national elections. Section 3 of RA 9006 and Section 6 of Comelec Resolution No.
9615 seek to regulate election propaganda, defined in the latter as:
The term “political advertisement” or “election propaganda” refers to any matter broadcasted,
public office. In broadcast media, political advertisements may
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take the form of spots, appearances on TV shows and radio programs, live or taped announcements,
teasers, and other forms of advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that appear on
any Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation. [Emphasis supplied]

Based on these definitions, the subject poster falls within the definition of election
propaganda. It named candidates for the 2013 elections, and was clearly intended to promote
the election of a list of candidates it favors and oppose the election of candidates in another
list. It was displayed in public view, and as such is capable of drawing the attention of the
voting public passing by the cathedral to its message.
That the subject poster was posted by private individuals does not take it away from the ambit
of the definition. The definition found in Comelec Resolution No. 9615 does not limit election
propaganda to acts by or in behalf of candidates.
Neither does RA 9006 contain such restrictions: a look at what constitutes lawful election
propaganda in RA 9006 also does not specify by whom or for whom the materials are
posted, viz.:
Sec. 3. Lawful Election Propaganda.—Election propaganda whether on television, cable television,
radio, newspapers or any other medium is hereby allowed for all registered political parties, national,
regional, sectoral parties or organizations participating under the party list elections and for all bona
fide candidates seeking national and local elective positions subject to the limitation on authorized
expenses of candidates and political parties, observance of truth in adver-
154
tising and to the supervision and regulation by the Commission on Elections (COMELEC). x x x
[Emphasis supplied]

Further, lawful election propaganda under the Omnibus Election Code, which RA 9006 cites
as part of its definition of what constitutes lawful propaganda, does not limit the materials
enumerated therein to those posted by or in behalf of candidates.24 Neither does the definition of
what constitutes an election offense limit the unlawful posting of election propaganda to those
posted by, or in behalf of candidates and their parties.25
Thus, I find it clear that the law does not distinguish between materials posted by or in behalf
of candidates or by
_______________
24 Sec. 82. Lawful election propaganda.—Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and
one-half inches in width and fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted, with an area exceeding two feet by three feet,
except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or
rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be
displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours
after said meeting or rally; or
(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due
notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be
heard: Provided, That the Commission’s authorization shall be published in two newspapers of general circulation
throughout the nation for at least twice within one week after the authorization has been granted.
25 Id.
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private individuals who have no political affiliation. When the law does not distinguish,
neither should we.
Had Congress intended to limit its definition of election propaganda to materials posted
for or in behalf of candidates, it could have so specified. Notably, Section 9 26 on the Posting
of Campaign Materials indicates who the Comelec may authorize to erect common poster areas
for campaign materials in public places. It does not, as the ponencia makes it appear, limit the
definition of election propaganda to those posted by candidates and parties.
The title of Section 9 uses the word “campaign materials” and not election propaganda;
thus, it refers to a particular type of election propaganda. Election propaganda becomes a
campaign material once it is used by candidates and political parties. Nevertheless, the
latter is different from the more generic term ‘election propaganda’ in the other parts of
RA 9006.
As worded, Section 9 regulates the manner by which candidates may post campaign
materials, allowing them, subject to the Comelec’s authorization, to erect common poster areas
in public places, and to post campaign materials in private property subject to its owner’s
consent. It does not, by any stretch of statutory construction, limit election propaganda to
posts by parties and candidates. Notably, the word “campaign material” appears only once in
RA 9006, signifying its limited application to Section 9, and that it should not be interchanged
with the term “election propaganda” appearing in other parts of the law.
In these lights, I disagree with the ponencia’s insistence that the Comelec had no legal basis
to regulate the subject posters, as these are expressions made by private individuals.
To support this conclusion, the ponencia pointed out that first, it may be inferred from
Section 9 of RA 9006 and Sec-
_______________
26 See Article XII of the Omnibus Election Code.

156
tion 17 of Comelec Resolution No. 9615 (both referring to campaign materials) that
election propaganda are meant to apply only to political parties and candidates because the
provisions on campaign materials only mention political parties and candidates;27 second, the
focus of the definition of the term election propaganda hinges on whether it is “designed to
promote the election or defeat of a particular candidate or candidates to a public
office;”28 and third, the subject poster falls within the scope of personal opinion that is not
considered as political advertising under Section 1, paragraph 429 of Comelec Resolution No.
9615.30
To my mind, the first two arguments lead us to navigate the forbidden waters of judicial
legislation. We cannot make distinctions when the law provides none — ubi lex non
distinguit, nec nos distinguere debemos.
As I have earlier pointed out, the definition of election propaganda is not limited to those
posted by, or in behalf of
_______________
27 Draft ponencia, pp. 64-65.

28 Id., at p. 67.
29 The term “political advertisement” or “election propaganda” refers to any matter broadcasted, published, printed,
displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with a candidate or party, and is intended to
draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the said
candidate or candidates to a public office. In broadcast media, political advertisements may take the form of spots,
appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising
messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet
website, including, but not limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation. (Emphasis supplied)
30 Draft ponencia, p. 87.
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candidates. Further, campaign materials are different from election propaganda — the former
refers to election propaganda used by candidates and political parties, and hence it is
understandable that it would only mention candidates and political parties.
Indeed, the definition of election propaganda focuses on the impact of the message, i.e., that
it is intended to promote or dissuade the election of candidates, and not for whom or by whom it
is posted. This nuance in the definition recognizes that the act of posting election propaganda can
be performed by anyone, regardless of whether he is a candidate or private individual. It does not
serve to limit the definition of election propaganda to materials posted by candidates.
At this point, I find it worthy to emphasize that our first and primary task is to apply and
interpret the law as written, and not as how we believe it should be.
With respect to the third argument, personal opinions are of course not included within the
definition of election propaganda. But when these opinions on public issues comingle with
persuading or dissuading the public to elect candidates, then these opinions become election
propaganda.
Notably, the exclusion of personal opinions in the definition of political advertisements refers
to matters that are printed in social media for pecuniary consideration. The entire provision was
meant to cover the phenomenon of paid blogs and advertisements in the Internet, without
including in its scope personal opinions of netizens. I do not think it can be extended to election
propaganda, as exceptions usually qualify the phrase nearest to it — in this case, it was meant to
qualify matters appearing in the Internet.
Further, if we were to follow the ponencia’s logic, and proclaim a personal opinion by a
private individual meant to influence the public as regards their vote an exemption to the election
propaganda definition, then it would render the entire definition useless. Since Comelec
Resolution No. 9615 does not limit personal opinions to private individuals, then it
158
applies with equal force to candidates, who necessarily have a personal opinion that they
should get elected, and would not pay themselves to utter these opinions. I dare say that such an
absurd situation, where an exception nullifies the general provision, had not been the intent of
Comelec Resolution No. 9615.
Additionally, the definition of election propaganda under RA 9006 has no mention of
personal opinions, and in case of inconsistency (which to me does not exist in the present case)
between a law and a regulation implementing it, the law should prevail.
Worthy of note, lastly, is that the commingling of the subject poster’s content with a public
issue in another poster does not exempt the former from regulation as an election propaganda.
The definition of election propaganda necessarily includes issues that candidates support,
because these issues can persuade or dissuade voters to vote for them. To be sure, it is a very
shortsighted view to claim that propaganda only relates to candidates, not to the issues they
espouse or oppose.
The present case reached this Court because the petitioners, who apparently are bent on
carrying their Reproductive Health (RH) message to the people, and as a means, rode on to the
then raging electoral fight by identifying candidates supporting and opposing the RH. While
indeed the RH issue, by itself, is not an electoral matter, the slant that the petitioners gave the
issue converted the nonelection issue into a live election one hence, Team Buhay and Team
Patay and the plea to support one and oppose the other.
From this perspective, I find it beyond question that the poster containing the message “RH
LAW IBASURA” was an election propaganda, and should thus comply with the size limitations.
To stress, the subject poster and its Team Buhay and Team Patay message advocated support or
opposition to specific candidates based on their respective RH stand and thus cannot but fall
within the coverage of what constitutes as election propaganda.
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Lastly, that the subject poster was posted on private property does not divest the Comelec of
authority to regulate it. The law specifically recognizes the posting of election propaganda on
private property provided its owner consents to it. In the present case, the property owner is the
Diocese of Bacolod itself, and the posting of the subject poster was made upon its own directive.

B. The notice and letter enforce a content-neutral regulation

Philippine jurisprudence distinguishes between the regulation of speech that is content-based,
from regulation that is content-neutral. Content-based regulations regulate speech because of the
substance of the message it conveys.31 In contrast, content-neutral regulations are merely
concerned with the incidents of speech: the time, place or manner of the speech’s utterance under
well-defined standards.32
Distinguishing the nature of the regulation is crucial in cases involving freedom of speech, as
it determines the test the Court shall apply in determining its validity.
Content-based regulations are viewed with a heavy presumption of unconstitutionality.
Thus, the government has the burden of showing that the regulation is narrowly tailored to meet
a compelling state interest, otherwise, the Court will strike it down as unconstitutional.33
In contrast, content-neutral regulations are not presumed unconstitutional. They pass
constitutional muster once they meet the following requirements: first, that the regulation is
within the constitutional power of the Govern-
_______________
31 Newsounds Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009, 583 SCRA 333.
32 Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, 545 SCRA 441, 493.
33 Id.
160
ment; second, that it furthers an important or substantial governmental interest; third, that the
governmental interest is unrelated to the suppression of free expression; and fourth, that the
incidental restriction on speech is no greater than is essential to further that interest.34
The assailed regulations in the present case involve a content-neutral regulation that
controls the incidents of speech. Both the notice and letter sent by the Comelec to the Diocese of
Bacolod sought to enforce Section 3.3 of RA 9006 and Section 6(c) of Comelec Resolution No.
9615 which limits the size of posters that contain election propaganda to not more than two by
three feet. It does not prohibit anyone from posting materials that contain election propaganda, so
long as it meets the size limitations.
Limitations on the size of a poster involve a content-neutral regulation involving the
manner by which speech may be uttered. It regulates how the speech shall be uttered, and does
not, in any manner affect or target the actual content of the message.
That the size of a poster or billboard involves a time, manner and place regulation is not
without judicial precedent, albeit in the US jurisdiction where our Bill of Rights and most of our
constitutional tests involving the exercise of fundamental rights first took root. Several
cases35 decided by the US
_______________
34 Social Weather Stations, Inc. v. Commission on Elections, G.R. No. 147571, May 5, 2001, 357 SCRA 496.
35 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789; 104 S. Ct. 2118;
80 L. Ed. 2d 772; 1984; Baldwin v. Redwood City, 540 F.2d 1360; 1976 U.S. App. LEXIS 7659; Baldwin v. Redwood
City, 540 F.2d 1360, 1368-1369 (CA9 1976), cert. denied sub nom. Leipzig v. Baldwin, 431 U.S. 913 (1977); Temple
Baptist Church, Inc. v. City of Albuquerque, 98 N. M. 138, 146, 646 P. 2d 565, 573 (1982); Krych v. Village of Burr
Ridge, 111 Ill. App. 3d 461, 464-466, 444 N.E. 2d 229, 232-233 (1982); Regan v. Time, 468 U.S. 641; 104 S. Ct. 3262; 82
L. Ed. 2d 487; 1984 U.S. LEXIS 147; 52 U.S.L.W. 5084.
161
VOL. 747, JANUARY 21, 2015 161
Supreme Court treated size restrictions in posters as a content-neutral regulation, and
consequently upheld their validity upon a showing of their relationship to a substantial
government interest.
Admittedly, the size of the poster impacts on the effectiveness of the communication and
the gravity of its message. Although size may be considered a part of the message, this is an
aspect that merely highlights the content of the message. It is an incident of speech that
government can regulate, provided it meets the requirements for content-neutral regulations.
That the incidents of speech are restricted through government regulation do not
automatically taint them because they do not restrict the message the poster itself carries. Again,
for emphasis, Comelec Resolution No. 9615 and RA 9006 regulate how the message shall be
transmitted, and not the contents of the message itself.
The message in the subject poster is transmitted through the text and symbols that it contains.
We can, by analogy, compare the size of the poster to the volume of the sound of a message.36 A
blank poster, for instance and as a rule, does not convey any message regardless of its size
(unless, of course, vacuity itself is the message being conveyed). In the same manner, a sound or
utterance, without words or tunes spoken or played, cannot be considered a message regardless
of its volume. We communicate with each other by symbols — written, verbal or illustrated —
and these communications are what the freedom of speech protects, not the manner by which
these symbols are conveyed.
Neither is the ponencia’s contention that larger spaces allow for more messages persuade to
treat the size limitation as a content-based regulation — persuasive. RA 9006 and Come-
_______________
36 See Regan v. Time, id., citing Kovacs v. Cooper, 336 U.S. 77 (1949).

162
lec Resolution No. 9615 do not limit the number of posters that may be posted; only their size
is regulated. Thus, the number of messages that a private person may convey is not limited by
restrictions on poster size.
Additionally, I cannot agree with the ponencia’s assertion that the assailed regulation is
content-based because it only applies to speech connected to the elections, and does not regulate
other types of speech, such as commercial speech.37
I am sure there are cases in the United States that recognize that a difference in treatment of
speech based on the content of the message involves a content-based regulation. These cases,
however, involve a single law providing either a preferential or prejudicial treatment on certain
types of messages over other messages.38 In contrast, the assailed regulation covers only election
propaganda (without regard to the actual message), and applies only during the election period.
Further, this kind of assertion, if followed, would amount to the declaration that the entire RA
9006 is a content-based regulation of speech, because it only regulates speech related to the
elections. On the flipside, this kind of assertion would render time, manner and place regulations
on commercial speech as content-based regulations because they regulate only speech pertaining
to commerce and not others. I find these resulting situations to be absurd as, in effect, they
eradicate the jurisprudential distinction between content-based and content-neutral regulations.
The more reasonable approach, to my mind, is to examine the regulation based on what it has
intended to regulate, i.e., the resulting impact of the regulation. In the present case, the assailed
regulation results into restricting the size of posters containing election propaganda, which, as I
have explained above, is a content-neutral regulation.
_______________

38 See, for instance, City of Ladue v. Gilleo, 512 U.S. 43.
163
VOL. 747, JANUARY 21, 2015 163
C. Comelec Resolution No. 9615 passes the intermediate scrutiny test for content-neutral
regulation

Applying the test for the intermediate test to Section 3.3 of RA 9006 and Section 6(c) of
Comelec Resolution No. 9615, I find that the size limitation on posters does not offend the
Constitution.

1. The size limitation for posters containing election propaganda in Section 6(c) of
Comelec Resolution No. 9615 and Section 3.3 of RA 9006 is within the constitutional power of
the Government
Philippine jurisprudence has long settled that the time, place, and manner of speech may be
subject to Government regulation. Since the size of a poster involves a time, place and manner
regulation, then it may be the proper subject of a government regulation.
That Congress may impose regulations on the time place, and manner of speech during the
election period is even implicitly recognized in Section 2, paragraph 7, Article IX-C of the 1987
Constitution. Under this provision, the Comelec is empowered to recommend to Congress
effective measures to minimize election spending, including limitation of places where
propaganda materials shall be posted. That Congress can pass regulations regarding places where
propaganda materials may be posted necessarily indicates that it can also pass other content-
neutral regulations, such as the time and manner of the speech’s utterance.
In considering the matter before us, it should not be lost to us that we are examining actions
implementing election laws. Both interests — freedom of speech and honest, fair and or-
164
derly elections — have been specifically recognized, in our Constitution39 and in the
jurisprudence applying them,40 as important constitutional values. If speech enjoys preference
for the individual in the hierarchy of rights, election regulations likewise have their preferred
status in the hierarchy of governmental interests and have no less basis than the freedom of
speech.41
_______________
39 Consider the following constitutional provisions on free speech and the holding of free, orderly elections that
provide equal opportunity for all its candidates:
Article II, Section 26 of the 1987 Constitution provides:
Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties
as may be defined by law.
Article III, Section 4 of the 1987 Constitution provides:
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.
Article IX-C, Section 4 of the 1987 Constitution provides:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or -controlled corporation or its subsidiary. Such supervision or regulation shall
aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.
40 See, for instance, National Press Club v. Commission on Elections, G.R. No. 102653, March 5, 1992, 207 SCRA
1; Osmeña v. Commission on Elections, G.R. No. 132231, March 31, 1998, 288 SCRA 447; SWS v. Commission on
Elections, supra note 34.
41 In National Press Club v. Commission on Elections, id., the Court thus said:
165
VOL. 747, JANUARY 21, 2015 165
2. The size limitation for posters containing election propaganda furthers an important and
substantial governmental interest
_______________
It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of
expression and freedom of the press (Article III[4], Constitution) has to be taken in conjunction with Article IX(C)(4)
which may be seen to be a special provision applicable during a specific limited period — i.e., “during the election
period.” It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the press
in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process
by which the people identify those who shall have governance over them. Thus, it is frequently said that these rights are
accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press are not
unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own
society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that
one may have at one’s disposal, is clearly an important value. One of the basic state policies given constitutional rank by
Article II, Section 26 of the Constitution is the egalitarian demand that “the State shall guarantee equal access to
opportunities for public service and prohibit political dynasties as may be defined by law.”
The technical effect of Article IX(C)(4) of the Constitution may be seen to be that no presumption of invalidity arises
in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal
opportunity among candidates for political office, although such supervision or regulation may result in some limitation of
the rights of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely
conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-honored one — that a
statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of
clearly and convincingly proving that assertion.
166
To justify its imposition of size restrictions on posters containing election propaganda, the
Comelec invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates, to ensure orderly elections and to recommend effective measures
to minimize election spending.
These, to me, are substantial government interests sufficient to justify the content-neutral
regulation on the size of the subject poster. Their inclusion in the Constitution signifies that they
are important. We have, in several cases, upheld the validity of regulations on speech because of
these state interests.42
Further, the limitation on the size of posters serves these interests: a cap on the size of a
poster ensures, to some extent, uniformity in the medium through which information on
candidates may be conveyed to the public. It effectively bars candidates, supporters or detractors
from using posters too large that they result in skewed attention from the public. The limitation
also prevents the candidates and their supporting parties from engaging in a battle of sizes (of
posters) and, in this sense, serve to minimize election spending and contribute to the maintenance
of peace and order during the election period.
The ponencia dismissed the government interests the Comelec cites for not being compelling
enough to justify a restriction on protected speech. According to the ponencia, a compelling state
interest is necessary to justify the governmental action because it affects constitutionally-
declared principles, i.e., freedom of speech.43
First of all, the ponencia has mixed and lumped together the test for the constitutionality of a
content-based regulation with that of a content-neutral regulation.
_______________
42 See, for instance, National Press Club v. Comelec, id., Osmeña v. Comelec, supra note 40.
43 Draft ponencia, pp. 96-97.
167
VOL. 747, JANUARY 21, 2015 167
A compelling state interest is a requirement for the constitutionality of a content-based
regulation. The ponencia imposes this requirement as an addition to the intermediate test for
content-neutral regulations, while at the same time applying this modified intermediate test to a
regulation that it has described as content-based. The test to determine the constitutionality of a
content-based regulation is different, and in fact requires a higher standard, from the test to
determine a content-neutral regulation’s validity. The requirements for the compelling state
interest test should not be confused with the requirements for the intermediate test, and vice
versa.
If we were to require a compelling state interest in content-neutral regulations, we, in
effect, would be transforming the intermediate test to a strict scrutiny test, and applying it
to both content-based and content-neutral regulations, as both regulations involve a
constitutional principle (i.e., the content of speech and the manner of speech). In other
words, we would be eradicating a crucial jurisprudential distinction on testing the validity
of a speech regulation, something that I find no cogent reason to disturb.
Neither can I agree with the ponencia’s use of Adiong v. Comelec44 as authority for holding
that ensuring equality between candidates is less important than guaranteeing the freedom of
expression.45 This pronouncement is within the context of characterizing the prohibition of
stickers and decals to private places as a form of unjustified censorship. In contrast, the
regulation in question does not prohibit anyone from posting any election propaganda, but only
to regulate its size. Notably, the weighing of constitutional values applies on a case-to-case basis;
we have, in the past, decided cases where
_______________
44 G.R. No. 103956, March 31, 1992, 207 SCRA 712.
168
the regulation of speech is allowed to ensure equal access to public service.
I note, too that ensuring equality between candidates is not the only goal achieved in
regulating the size of election posters — it is also meant to enforce the constitutional goals of
minimizing election spending, and ensuring orderly elections.
Lastly, I cannot agree with the ponencia’s contention that the Comelec’s interest and
regulatory authority in the posting of election propaganda is limited to postings in public places.
The regulatory framework of RA 9006 is not limited to election propaganda in public places, and
in fact recognizes that they may be posted in private property, subject to their owners’ consent.
Further, the pronouncement in Adiong, where the Court held that the regulation prohibiting
the posting of decals and stickers in private property violates the property owners’ right to
property, does not apply in the presently assailed regulation, because the latter does not prohibit
the posting of posters but merely regulates its size.
The ponencia’s legal conclusion also contravenes settled doctrine regarding the government’s
capacity to regulate the incidents of speech, i.e., its time, place and manner of utterance. Notably,
paragraph 7, Section 2, Article IX-C of the 1987 Constitution — one of the provisions the
Comelec invokes to justify its regulation — specifically recognizes that the Congress may
regulate the places of posting election propaganda. This provision, like RA 9006, does not limit
the generic term ‘place,’ and thus applies to both public and private property.
Justice Estela M. Perlas-Bernabe, on the other hand, argues that there is no substantial state
interest in restricting the posters’ size, because like the posting of decals and stickers
in Adiong,46 it does not endanger any substantial govern-
_______________
46 Supra note 44.
169
VOL. 747, JANUARY 21, 2015 169
ment interest and at the same time restricts the speech of individuals on a social issue.47
It must be stressed, however, that unlike in Adiong, which prohibited the posting of decals
and stickers in private places, the assailed regulation in the present case does not prohibit the
posting of election propaganda, but merely requires that it comply with size requirements. These
size requirements promote government interests enumerated in the Constitution, and its
nonregulation would hinder them.

3. The governmental interest in limiting the size of posters containing election propaganda
is unrelated to the suppression of free expression

The government’s interest in limiting the size of posters containing election propaganda does
add to or restrict the freedom of expression. Its interests in equalizing opportunity for public
information campaigns among candidates, minimizing election spending, and ensuring orderly
elections do not relate to the suppression of free expression.
Freedom of expression, in the first place, is not the god of rights to which all other rights and
even government protection of state interest must bow. Speech rights are not the only important
and relevant values even in the most democratic societies. Our Constitution, for instance, values
giving equal opportunity to proffer oneself for public office, without regard to a person’s status,
or the level of financial resources that one may have at one’s disposal.48
_______________
47 Justice Estela M. Perlas-Bernabe’s Concurring Opinion, p. 173.

48 See National Press Club v. COMELEC, supra note 40.
170
On deeper consideration, elections act as one of the means by which the freedom of
expression and other guaranteed individual rights are protected, as they ensure that our
democratic and republican ideals of government are fulfilled. To put it more bluntly, unless there
are clean, honest and orderly elections that give equal opportunities and free choice to all, the
freedoms guaranteed to individuals may become a joke, a piece of writing held in reverence only
when it suits the needs or fancy of officials elected in tainted elections.

4. The incidental restriction on speech is no greater than is essential to further that interest

Indeed, the restriction on the poster’s size affects the manner by which the speech may be
uttered, but this restriction is no greater than necessary to further the government’s claimed
interests.
Size limits to posters are necessary to ensure equality of public information campaigns among
candidates, as allowing posters with different sizes gives candidates and their supporters the
incentive to post larger posters. This places candidates with more money and/or with deep-
pocket supporters at an undue advantage against candidates with more humble financial
capabilities.
Notably, the law does not limit the number of posters that a candidate, his supporter, or a
private individual may post. If the size of posters becomes unlimited as well, then candidates
and parties with bigger campaign funds could effectively crowd out public information on
candidates with less money to spend to secure posters — the former’s bigger posters and sheer
number could effectively take the attention away from the latter’s message. In the same manner,
a lack of size limitations would also crowd out private, unaffiliated individuals from participating
in the discussion through post-
171
VOL. 747, JANUARY 21, 2015 171
ers, or at the very least, compel them to erect bigger posters and thus spend more.
Prohibiting size restrictions on posters is also related to election spending, as it would allow
candidates and their supporters to post as many and as large posters as their pockets could afford.
In these lights, I cannot agree with Justice Antonio T. Carpio’s argument that the size
restriction on posters restricts speech greater than what is necessary to achieve the state’s
interests. The restriction covers only the size of the posters, and not the message it contains. If
posting a longer message or its readability is the issue, then it must be pointed out that nothing in
RA 9006 or Comelec Resolution No. 9615 prevents the posting of more than one poster
containing the longer message in one site. Applying this to Justice Carpio’s example,
condominium owners in the 30th floor, should they be adamant in posting their message in the
said floor, can post more than one poster to make their message readable.
Too, they can still post their message in other areas where their message may be read. It may
be argued, at this point, that this would amount to an indirect regulation of the place where
posters may be posted. It must be remembered, however, that the place of posting involves a
content-neutral regulation that the Comelec is authorized to implement, and that in any case,
there is no explicit limitation as to where the posters may be posted. They may still be posted
anywhere, subject only to the size requirements for election propaganda.
172

SEPARATE CONCURRING OPINION

PERLAS-BERNABE, J.:

I concur with the ponencia that the COMELEC’s Notice to Remove Campaign Materials
dated February 22, 2013 and Letter dated February 27, 2013 (the COMELEC issuances) ordering
the immediate removal of the tarpaulin subject of this case are null and void for being
unreasonable restrictions on free speech. I, however, disagree in the approach the ponencia takes
in decreeing the same. This stems from my view that the said COMELEC issuances constitute
content-neutral and not content-based regulations as the ponencia so holds, reasoning that
“the content of the tarpaulin is not easily divorced from the size of its medium.” 1 In this regard, I
agree with the opinion of Senior Associate Justice Antonio T. Carpio that these issuances,
which effectively limit the size of the tarpaulin, are examples of content-neutral regulations
as they restrict only the manner by which speech is relayed but not the content of what is
conveyed.2 I find this to be true since no peculiar reason was proffered by the petitioners behind
the sizing of their poster — say, to put emphasis on a particular portion of the text or to
deliberately serve as some sort of symbolic allusion. The tarpaulin’s size links, as it appears, only
to the efficiency of the communication, following the logic that a larger size makes them more
visible. This, to my mind, merely concerns the manner by which the speech is communicated,
and not its content. In the same vein, it is my observation that sensible use of time and place
(both of which are generally recognized as incidents of speech, akin to how I perceive the
poster’s size) may also affect the efficiency of communication: perceptibly, a
_______________
1 See ponencia, p. 93.
2 See Separate Concurring Opinion of Senior Associate Justice Antonio T. Carpio, p. 128.
173
VOL. 747, JANUARY 21, 2015 173
message conveyed at a time and place where people are most likely to view the same may
have the effect of making the communication more “efficient.” The distinction between a
content-neutral regulation and a content-based regulation, as enunciated in the case
of Newsounds Broadcasting Network, Inc. v. Hon. Dy,3 is as follows:
[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-
defined standards; and a content-based restraint or censorship, i.e., the restriction is based on the
subject matter of the utterance or speech. 4
x x x x (Emphases supplied)

Since the sizing regulations, i.e., the COMELEC issuances, are concerned only with an
incident of speech, that is, the manner by which the speech was communicated, I thus
respectfully submit that they should have been characterized by the ponencia as content-neutral,
and not content-based regulations. As I see it, the medium here is not the message.
On the premise that the COMELEC issuances constitute content-neutral regulations, the
method of constitutional scrutiny which should be applied would then be the intermediate
scrutiny test, and not the strict scrutiny test which the ponencia necessarily utilized due to its
content-based classification.
As comprehensively explained in the seminal case of Chavez v. Gonzales,5 “[w]hen 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 par-
_______________
3 602 Phil. 255; 583 SCRA 333 (2009).

4 Id., at p. 271; p. 352.
5 569 Phil. 155; 545 SCRA 441 (2008).
174
ticular 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 significant
governmental interest that is unrelated to the suppression of expression. The intermediate
approach has [thus] been formulated in this manner: A governmental regulation is sufficiently
justified if it is within the constitutional power of the Government, if [(a)] it furthers an
important or substantial governmental interest; [(b)] the governmental interest is unrelated to
the suppression of free expression; and [(c)] the incident restriction on alleged [freedom of
speech and expression] is no greater than is essential to the furtherance of that interest.”6
“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.”7
Given the peculiar circumstances of this case, it is my view that the COMELEC issuances do
not advance an important or substantial governmental interest so as to warrant the restriction of
free speech. The subject tarpaulin cannot be classified as the usual election propaganda directly
endorsing a particular candidate’s campaign. Albeit with the incidental effect of manifesting
candidate approval/disapproval, the
_______________
6 Id., at pp. 205-206; pp. 493-494. (emphases and underscoring supplied)

7 Id., at p. 206; p. 494. (emphases in the original)
175
VOL. 747, JANUARY 21, 2015 175
subject tarpaulin, at its core, really asserts a private entity’s, i.e., the Diocese’s, personal
advocacy on a social issue, i.e., reproductive health, in relation to the passage of Republic Act
No. 10354,8 otherwise known as the “Responsible Parenthood and Reproductive Health Act of
2012.” What is more is that the tarpaulin, although open to the public’s view, was posted in
purely private property by the Diocese’s own volition and without the prodding or instruction of
any candidate. In Blo Umpar Adiong v. COMELEC (Adiong),9 the Court nullified the prohibition
on the posting of decals and stickers in “mobile” places like cars and other moving vehicles as
the restriction did not endanger any substantial government interest, observing, among
others, that “the freedom of expression curtailed by the questioned prohibition is not so
much that of the candidate or the political party.”10 The Court rationalized that:
The regulation strikes at the freedom of an individual to express his preference and, by displaying it
on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the
car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the
owner, primarily his own and not of anybody else. If, in the National Press Club [v. Comelec] case
[G.R. No. 102653, March 5, 1992, 207 SCRA 1], the Court was careful to rule out restrictions on
reporting by newspapers or radio and television stations and commentators or columnists as long as these
are not correctly paid-for advertisements or purchased opinions[,] with less reason can we sanction the
prohibition against a sincere manifestation of support and a proclamation of belief by an individual
person
_______________
8 Entitled “An Act Providing for a National Policy on Responsible Parenthood and Reproductive Health” (December
21, 2012).
9 G.R. No. 103956, March 31, 1992, 207 SCRA 712.
10 Id., at p. 719.
176

who pastes a sticker or decal on his private property. (Emphases supplied)
11

Considering the totality of the factors herein detailed, and equally bearing in mind the
discussions made in Adiong, I submit that the COMELEC issuances subject of this case do not
satisfy the substantial governmental interest requisite and, hence, fail the intermediate scrutiny
test. Surely, while the COMELEC’s regulatory powers ought to be recognized, personal
advocacies pertaining to relevant social issues by a private entity within its own private property
ought to fall beyond that broad authority, lest we stifle the value of a core liberty.
ACCORDINGLY, subject to the above stated reasons, I concur with the ponencia and vote
to GRANT the petition.
Petition granted, temporary restraining order made permanent.
Notes.—Freedom of expression constitutes one of the essential foundations of a democratic
society, and this freedom applies not only to those that are favorably received but also to those
that offend, shock or disturb. (Ang Ladlad LGBT Party vs. Commission on Elections, 618
SCRA 32 [2010])
The established policy of strict observance of the judicial hierarchy of courts, as a rule,
requires that recourse must first be made to the lower-ranked court exercising concurrent
jurisdiction with a higher court. (Dio vs. Subic Bay Marine Exploratorium, Inc., 726 SCRA 244
[2014])
——o0o——

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ASES REPORTED

1 Rollo, pp. 3-8.

The three (3)-day notice expired on February 25, 2013.

17 Id., at pp. 32-49.

21 Id., at pp. 62-64.

the original, citations omitted)

28 548 Phil. 639; 520 SCRA 88 (2007) [Per J. Carpio, En Banc].

36 Repol v. COMELEC, supra note 27 at p. 322.

41 Soriano, Jr. v. Commission on Elections, supra note 28 at p. 89.

47 Id., at p. 630; p. 761.

56 Const., Art. VIII, Sec. 1, par. (2).

66 Id., at pp. 732-733; p. 766.

87 Id., at pp. 727-728; pp. 487-488, Separate Opinion of J. Vitug.

90 258 Phil. 479; 177 SCRA 668 (1989) [Per J. Cortes, En Banc].

92 259 Phil. 980; 180 SCRA 496 (1989) [Per J. Cruz, En Banc].

97 279 Phil. 920; 202 SCRA 844 (1991) [Per J. Paras, En Banc].

original, citations omitted)

100 Id., at p. 1103; pp. 201-202, Concurring and Dissenting Opinion of J. Puno.

101 Id., at pp. 910-912; pp. 150-151.

107 569 Phil. 155; 545 SCRA 441 (2008) [Per CJ. Puno, En Banc].

111 Id., at pp. 425-426; p. 238.

113 Rollo, pp. 70-71, 74, and 82-83.

114 See Rep. Act No. 9006 (2001), Sec. 2.

126 G.R. No. 102653, March 5, 1992, 207 SCRA 1 [Per J. Feliciano, En Banc].

131 Rollo, pp. 40 and 47.

147 Id., citing US v. O’Brien, 391 U.S. 367, 376 (1968).

151 Id., at pp. 275-276.

157 Id., at p. 235; p. 279.

172 Id., at p. 675; pp. 201-202.

198 Id., at p. 563; pp. 926-927.

204 J. Brion, Dissenting Opinion, p. 158.

205 37 Phil. 731 (1918) [Per J. Malcolm, En Banc].

206 Id., at pp. 740-741.

214 210 Phil. 457; 125 SCRA 553 (1983) [Per CJ. Fernando, En Banc].

rate democratic values: governmental accountability and citizen participation.”

228 Chavez v. Gonzales, supra note 199 at pp. 207-208; p. 496.

231 Id., at p. 206; p. 494.

237 70 Phil. 726 (1940) [Per J. Laurel, En Banc].

and J. Nachura. J. Corona joined J. Nachura’s opinion. J. Leonardo-De Castro joined J. Nazario’s and J. Nachura’s

254 Const., Art. II, Secs. 12 and 13.

263 Rep. Act No. 9006 (2001), Sec. 3.3, provides:

275 See Herbert Marcuse, Repressive Tolerance, in A Critique of Pure Tolerance, p. 85 (1965).

283 Id., at pp. 184-192.

302 Id., at p. 742; p. 503.

311 Const., Art. III, Sec. 4.

316 Id., at pp. 721-722; pp. 231-232.

319 Id., at pp. 721-722.

334 Id., at p. 353; pp. 421-422.

* * As per CJ. Sereno, J. Brion left his vote. See his Dissenting Opinion.

2 Section 13, third paragraph.

12 E.g., Section 9 of RA 9006 which provides:

18 Section 6 of Comelec Resolution No. 9386 provides:

19 Comelec Resolution No. 9386, Section 6.

24 Sec. 82. Lawful election propaganda.—Lawful election propaganda shall include:

26 See Article XII of the Omnibus Election Code.

27 Draft ponencia, pp. 64-65.

36 See Regan v. Time, id., citing Kovacs v. Cooper, 336 U.S. 77 (1949).

37 Draft ponencia, p. 72.

47 Justice Estela M. Perlas-Bernabe’s Concurring Opinion, p. 173.