G.R. No.

205728               January 21, 2015 passing of the law were classified by petitioners as comprising "Team Dear Bishop Navarra:
Patay," while those who voted against it form "Team Buhay":7
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST It has reached this Office that our Election Officer for this City, Atty.
REV. BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF TEAM BUHAY TEAM PATAY Mavil Majarucon, had already given you notice on February 22, 2013
IN HIS PERSONAL CAPACITY, Petitioners, as regards the election propaganda material posted on the church
vs. Estrada, JV Angara, Juan Edgardo vicinity promoting for or against the candidates and party-list groups
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF with the following names and messages, particularly described as
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents. Honasan, Gregorio Casiño, Teddy follows:
Magsaysay, Mitos Cayetano, Alan Peter
DECISION Material size : six feet (6’) by ten feet (10’)
Pimentel, Koko Enrile, Jackie
LEONEN, J.: Trillanes, Antonio Escudero, Francis Description : FULL COLOR TARPAULIN

"The Philippines is a democratic and republican State. Sovereignty Villar, Cynthia Hontiveros, Risa Image of : SEE ATTACHED PICTURES
resides in the people and all government authority emanates from Party List Buhay Legarda, Loren
them." – Article II, Section 1, Constitution Message : CONSCIENCE VOTE (ANTI RH) TEAM
Party List Ang Pamilya Party List Gabriela
All governmental authority emanates from our people. No BUHAY; (PRO RH) TEAM PATAY
  Party List Akbayan
unreasonable restrictions of the fundamental and preferred right to
expression of the electorate during political contests no matter how   Party List Bayan Muna
seemingly benign will be tolerated. Location : POSTED ON THE CHURCH VICINITY
  Party List Anak Pawis OF THE DIOCESE OF BACOLOD CITY
This case defines the extent that our people may shape the debates
during elections. It is significant and of first impression. We are asked The three (3) – day notice expired on February 25, 2013.
During oral arguments, respondents conceded that the tarpaulin was
to decide whether the Commission on Elections (COMELEC) has the neither sponsored nor paid for by any candidate. Petitioners also
competence to limit expressions made by the citizens — who are not conceded that the tarpaulin contains names ofcandidates for the 2013 Considering that the above-mentioned material is found to be in
candidates — during elections. elections, but not of politicians who helped in the passage of the RH violation of Comelec Resolution No. 9615 promulgated on January
Law but were not candidates for that election. 15, 2013 particularly on the size (even with the subsequent division of
Before us is a special civil action for certiorari and prohibition with the said tarpaulin into two), as the lawful size for election propaganda
application for preliminary injunction and temporary restraining material is only two feet (2’) by three feet (3’), please order/cause the
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her immediate removal of said election propaganda material, otherwise,
order1 under Rule 65 of the Rules of Court seeking to nullify capacity as Election Officer of Bacolod City, issued a Notice to
COMELEC’s Notice to Remove Campaign Materials2 dated February we shall be constrained to file an election offense case against you.
Remove Campaign Materials8 addressed to petitioner Most Rev.
22, 2013 and letter3 issued on February 27, 2013. Bishop Vicente M. Navarra. The election officer ordered the
tarpaulin’s removal within three (3) days from receipt for being We pray that the Catholic Church will be the first institution to help the
The facts are not disputed. oversized. COMELEC Resolution No. 9615 provides for the size Commission on Elections inensuring the conduct of peaceful, orderly,
requirement of two feet (2’) by three feet (3’).9 honest and credible elections.
On February 21, 2013, petitioners posted two (2) tarpaulins within a
private compound housing the San Sebastian Cathedral of Bacolod. On February 25, 2013, petitioners replied10 requesting, among others, Thank you and God Bless!
Each tarpaulin was approximately six feet (6') by ten feet (10') in size. that (1) petitioner Bishop be given a definite ruling by COMELEC Law
They were posted on the front walls of the cathedral within public Department regarding the tarpaulin; and (2) pending this opinion and [signed]
view. The first tarpaulin contains the message "IBASURA RH Law" the availment of legal remedies, the tarpaulin be allowed to remain.11 ATTY. ESMERALDA AMORA-LADRA
referring to the Reproductive Health Law of 2012 or Republic Act No. Director IV13
10354. The second tarpaulin is the subject of the present case.4 This On February 27, 2013, COMELEC Law Department issued a
tarpaulin contains the heading "Conscience Vote" and lists candidates letter12 ordering the immediate removal of the tarpaulin; otherwise, it Concerned about the imminent threatof prosecution for their exercise
as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) will be constrained to file an election offense against petitioners. The of free speech, petitioners initiated this case through this petition for
Team Patay" with an "X" mark.5 The electoral candidates were letter of COMELEC Law Department was silenton the remedies certiorari and prohibition with application for preliminary injunction and
classified according to their vote on the adoption of Republic Act No. available to petitioners. The letter provides as follows: temporary restraining order.14 They question respondents’ notice
10354, otherwise known as the RH Law.6 Those who voted for the dated February 22, 2013 and letter issued on February 27, 2013.
They pray that: (1) the petition be given due course; (2) a temporary CIRCUMSTANCES WHICH WOULD ALLOW THIS judgments of the COMELEC En Banc issued in the exercise of its
restraining order (TRO) and/or a writ of preliminary injunction be COURT TO TAKE COGNIZANCE OF THE CASE[;] adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21
issued restraining respondents from further proceeding in enforcing
their orders for the removal of the Team Patay tarpaulin; and (3) after II. Rule 64 is not the exclusive remedy for all acts of the COMELEC.
notice and hearing, a decision be rendered declaring the questioned Rule 65 is applicable especially to raise objections relating to a grave
orders of respondents as unconstitutional and void, and permanently abuse of discretion resulting in the ouster of jurisdiction.22 As a special
restraining respondents from enforcing them or any other similar WHETHER IT IS RELEVANT TODETERMINE WHETHER THE
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION civil action, there must also be a showing that there be no plain,
order.15 speedy, and adequate remedy in the ordinary course of the law.
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A
POLITICAL CANDIDATE[;]
After due deliberation, this court, on March 5, 2013, issued a Respondents contend that the assailed notice and letter are not
temporary restraining order enjoining respondents from enforcing the subject to review by this court, whose power to review is "limited only
assailed notice and letter, and set oral arguments on March 19, III.
to final decisions, rulings and orders of the COMELEC En Banc
2013.16 rendered in the exercise of its adjudicatory or quasi-judicial
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION power."23 Instead, respondents claim that the assailed notice and
17
On March 13, 2013, respondents filed their comment  arguing that (PROTECTED SPEECH), OR ELECTION letter are reviewable only by COMELEC itself pursuant to Article IX-C,
(1) a petition for certiorari and prohibition under Rule 65 of the Rules PROPAGANDA/POLITICAL ADVERTISEMENT[;] Section 2(3) of the Constitution24 on COMELEC’s power to decide all
of Court filed before this court is not the proper remedy to question questions affecting elections.25 Respondents invoke the cases of
the notice and letter of respondents; and (2) the tarpaulin is an A. ASSUMING ARGUENDO THAT THE Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
election propaganda subject to regulation by COMELEC pursuant to TARPAULINS ARE A FORM OF EXPRESSION, COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
its mandate under Article IX-C, Section 4 of the Constitution. Hence, WHETHER THE COMELEC POSSESSES THE COMELEC,30 to illustrate how judicialintervention is limited to final
respondents claim that the issuances ordering its removal for being AUTHORITY TO REGULATE THE SAME[;] decisions, orders, rulings and judgments of the COMELEC En Banc.31
oversized are valid and constitutional.18
B. WHETHER THIS FORM OF EXPRESSION MAY These cases are not applicable.
During the hearing held on March 19, 2013, the parties were directed BE REGULATED[;]
to file their respective memoranda within 10 days or by April 1, 2013, In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race
taking into consideration the intervening holidays.19 IV. of Eastern Samar filed the election protest.32 At issue was the validity
of the promulgation of a COMELEC Division resolution.33 No motion
The issues, which also served as guide for the oral arguments, are:20 WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY for reconsideration was filed to raise this issue before the COMELEC
ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 En Banc. This court declared that it did not have jurisdiction and
I. ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE clarified:
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY We have interpreted [Section 7, Article IX-A of the Constitution]34 to
ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 V. mean final orders, rulings and decisionsof the COMELEC rendered in
ORDER BY THE COMELEC LAW DEPARTMENT ARE the exercise of its adjudicatory or quasi-judicial powers." This decision
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF must be a final decision or resolution of the Comelec en banc, not of a
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS division, certainly not an interlocutory order of a division.The Supreme
THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
COURT VIA RULE 65 PETITION[;] Court has no power to review viacertiorari, an interlocutory order or
SEPARATION OF CHURCH AND STATE. even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)
A. WHETHER PETITIONERS VIOLATED THE I
HIERARCHY OF COURTS DOCTRINE AND PROCEDURAL ISSUES
JURISPRUDENTIAL RULES GOVERNING However, in the next case cited by respondents, Repol v. COMELEC,
APPEALS FROM COMELEC DECISIONS; this court provided exceptions to this general rule. Repolwas another
I.A election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court
B. ASSUMING ARGUENDO THAT THE because the COMELEC First Division issued a status quo ante order
AFOREMENTIONED ORDERS ARE NOT This court’s jurisdiction over COMELEC cases
against the Regional Trial Court executing its decision pending
CONSIDERED JUDGMENTS/FINAL appeal.37 This court’s ponencia discussed the general rule enunciated
ORDERS/RESOLUTIONS OF THE COMELEC, Respondents ask that this petition be dismissed on the ground that in Ambil, Jr. that it cannot take jurisdiction to review interlocutory
WHETHER THERE ARE EXCEPTIONAL the notice and letter are not final orders, decisions, rulings, or 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 case applying one of the exceptions in ABS-CBN: The assailed defined as the authority "to hear and determine cases of the general
requirement [of filing a motion for reconsideration] may be glossed resolution was a nullity.47 class to which the proceedings in question belong and is conferred by
over to prevent miscarriage of justice, when the issue involves the the sovereign authority which organizes the court and defines its
principle of social justice or the protection of labor, when the decision Finally, respondents cited Cayetano v. COMELEC, a recent election powers."55 Definitely, the subject matter in this case is different from
or resolution sought to be set aside is a nullity, or when the need for protest case involving the mayoralty candidates of Taguig the cases cited by respondents.
relief is extremely urgent and certiorari is the only adequate and City.48 Petitioner assailed a resolution of the COMELEC denying her
speedy remedy available.40 motion for reconsideration to dismiss the election protest petition for Nothing less than the electorate’s political speech will be affected by
lack of form and substance.49 This court clarified the general rule and the restrictions imposed by COMELEC. Political speech is motivated
Based on ABS-CBN, this court could review orders and decisions of refused to take cognizance of the review of the COMELEC order. by the desire to be heard and understood, to move people to action. It
COMELEC — in electoral contests — despite not being reviewed by While recognizing the exceptions in ABS-CBN, this court ruled that is concerned with the sovereign right to change the contours of power
the COMELEC En Banc, if: these exceptions did not apply.50 whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The
1) It will prevent the miscarriage of justice; Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by zeal with which we protect this kind of speech does not depend on
respondents do not operate as precedents to oust this court from our evaluation of the cogency of the message. Neither do we assess
taking jurisdiction over this case. All these cases cited involve election whether we should protect speech based on the motives of
2) The issue involves a principle of social justice; COMELEC. We evaluate restrictions on freedom of expression from
protests or disqualification cases filed by the losing candidate against
the winning candidate. their effects. We protect both speech and medium because the quality
3) The issue involves the protection of labor; of this freedom in practice will define the quality of deliberation in our
democratic society.
In the present case, petitioners are not candidates seeking for public
4) The decision or resolution sought tobe set aside is a office. Their petition is filed to assert their fundamental right to
nullity; or expression. COMELEC’s notice and letter affect preferred speech. Respondents’
acts are capable of repetition. Under the conditions in which it was
5) The need for relief is extremely urgent and certiorari is the issued and in view of the novelty of this case,it could result in a
Furthermore, all these cases cited by respondents pertained to "chilling effect" that would affect other citizens who want their voices
only adequate and speedy remedy available. COMELEC’s exercise of its adjudicatory or quasi-judicial power. This heard on issues during the elections. Other citizens who wish to
case pertains to acts of COMELEC in the implementation of its express their views regarding the election and other related issues
Ultimately, this court took jurisdiction in Repoland decided that the regulatory powers. When it issued the notice and letter, the may choose not to, for fear of reprisal or sanction by the COMELEC.
status quo anteorder issued by the COMELEC Division was COMELEC was allegedly enforcingelection laws. Direct resort to this court is allowed to avoid such proscribed
unconstitutional. conditions. Rule 65 is also the procedural platform for raising grave
I.B abuse of discretion.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also
an election protest case involving candidates for the city council of Rule 65, grave abuse of discretion, Both parties point to constitutional provisions on jurisdiction. For
Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a petitioners, it referred to this court’s expanded exercise of certiorari as
petition for certiorari against an interlocutory order of the COMELEC provided by the Constitution as follows:
First and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the Judicial power includes the duty of the courts of justice to settle actual
Division.42 While the petition was pending in this court, the COMELEC controversies involving rights which are legally demandable and
First Division dismissed the main election protest infringement on speech and the "chilling effect" caused by respondent
COMELEC’s notice and letter. enforceable, and to determine whether ornot there has been a grave
case.43 Sorianoapplied the general rule that only final orders should abuse of discretion amounting to lack or excess of jurisdiction on the
be questioned with this court. The ponencia for this court, however, part of any branch or instrumentality of the Government.56 (Emphasis
acknowledged the exceptions to the general rule in ABS-CBN.44 Petitioners allege that respondents committed grave abuse of supplied)
discretion amounting to lack or excess of jurisdiction in issuing the
Blanco v. COMELEC, another case cited by respondents, was a notice51 dated February 22,2013 and letter52 dated February 27, 2013
ordering the removal of the tarpaulin.53 It is their position that these On the other hand, respondents relied on its constitutional mandate to
disqualification case of one of the mayoralty candidates of decide all questions affectingelections. Article IX-C, Section 2(3) of
Meycauayan, Bulacan.45 The COMELEC Second Division ruled that infringe on their fundamental right to freedom of expression and
violate the principle of separation of church and state and, thus, are the Constitution, provides:
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 unconstitutional.54
elections.46 No motion for reconsideration was filed before the Sec. 2. The Commission on Elections shall exercise the following
COMELEC En Banc. This court, however, took cognizance of this The jurisdiction of this court over the subject matter is determined powers and functions:
from the allegations in the petition. Subject matter jurisdiction is
 .... Hierarchy of courts 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
(3) Decide, except those involving the right to vote, all questions This brings us to the issue of whether petitioners violated the doctrine the specific action for the writ’s procurement must be presented. This
affecting elections, including determination of the number and location of hierarchy of courts in directly filing their petition before this court. is and should continue to be the policy in this regard, a policy that
of polling places, appointment of election officials and inspectors, and courts and lawyers must strictly observe.66 (Emphasis omitted)
registration of voters. Respondents contend that petitioners’ failure to file the proper suit
with a lower court of concurrent jurisdiction is sufficient ground for the The doctrine that requires respect for the hierarchy of courts was
Respondents’ reliance on this provision is misplaced. dismissal of their petition.57 They add that observation of the hierarchy created by this court to ensure that every level of the judiciary
of courts is compulsory, citing Heirs of Bertuldo Hinog v. performs its designated roles in an effective and efficient manner.
Melicor.58 While respondents claim that while there are exceptions to Trial courts do not only determine the facts from the evaluation of the
We are not confronted here with the question of whether the evidence presented before them. They are likewise competent to
COMELEC, in its exercise of jurisdiction, gravely abused it. We are the general rule on hierarchy of courts, none of these are present in
this case.59 determine issues of law which may include the validity of an
confronted with the question as to whether the COMELEC had any ordinance, statute, or even an executive issuance in relation to the
jurisdiction at all with its acts threatening imminent criminal action Constitution.67 To effectively perform these functions, they are
effectively abridging meaningful political speech. On the other hand, petitioners cite Fortich v. Corona60 on this court’s territorially organized into regions and then into branches. Their writs
discretionary power to take cognizance of a petition filed directly to it if generally reach within those territorial boundaries. Necessarily, they
It is clear that the subject matter of the controversy is the effect of warranted by "compelling reasons, or [by] the nature and importance mostly perform the all-important task of inferring the facts from the
COMELEC’s notice and letter on free speech. This does not fall under of the issues raised. . . ."61 Petitioners submit that there are evidence as these are physically presented before them. In many
Article IX-C, Section 2(3) of the Constitution. The use of the word "exceptional and compelling reasons to justify a direct resort [with] instances, the facts occur within their territorial jurisdiction, which
"affecting" in this provision cannot be interpreted to mean that this Court."62 properly present the ‘actual case’ that makes ripe a determination of
COMELEC has the exclusive power to decide any and allquestions the constitutionality of such action. The consequences, of course,
that arise during elections. COMELEC’s constitutional competencies In Bañez, Jr. v. Concepcion,63 we explained the necessity of the would be national in scope. There are, however, some cases where
during elections should not operate to divest this court of its own application of the hierarchy of courts: resort to courts at their level would not be practical considering their
jurisdiction. decisions could still be appealed before the higher courts, such as the
The Court must enjoin the observance of the policy on the hierarchy Court of Appeals.
The more relevant provision for jurisdiction in this case is Article VIII, of courts, and now affirms that the policy is not to be ignored without
Section 5(1) of the Constitution.This provision provides for this court’s serious consequences. The strictness of the policy is designed to The Court of Appeals is primarily designed as an appellate court that
original jurisdiction over petitions for certiorari and prohibition. This shield the Court from having to deal with causes that are also well reviews the determination of facts and law made by the trial courts. It
should be read alongside the expanded jurisdiction of the court in within the competence of the lower courts, and thus leave time to the is collegiate in nature. This nature ensures more standpoints in the
Article VIII, Section 1 of the Constitution. Court to deal with the more fundamental and more essential tasks review of the actions of the trial court. But the Court of Appeals also
that the Constitution has assigned to it. The Court may act on has original jurisdiction over most special civil actions. Unlike the trial
Certainly, a breach of the fundamental right of expression by petitions for the extraordinary writs of certiorari, prohibition and courts, its writs can have a nationwide scope. It is competent to
COMELEC is grave abuse of discretion. Thus, the constitutionality of mandamus only when absolutely necessary or when serious and determine facts and, ideally, should act on constitutional issues
the notice and letter coming from COMELEC is within this court’s important reasons exist to justify an exception to the policy.64 thatmay not necessarily be novel unless there are factual questions to
power to review. determine.
In Bañez, we also elaborated on the reasons why lower courts are
During elections, we have the power and the duty to correct any allowed to issue writs of certiorari, prohibition, and mandamus, citing This court, on the other hand, leads the judiciary by breaking new
grave abuse of discretion or any act tainted with unconstitutionality on Vergara v. Suelto:65 ground or further reiterating — in the light of new circumstances or in
the part of any government branch or instrumentality. This includes the light of some confusions of bench or bar — existing precedents.
actions by the COMELEC. Furthermore, it is this court’s constitutional The Supreme Court is a court of lastresort, and must so remain if it is Rather than a court of first instance or as a repetition of the actions of
mandate to protect the people against government’s infringement of to satisfactorily perform the functions assigned to it by the the Court of Appeals, this court promulgates these doctrinal devices
their fundamental rights. This constitutional mandate out weighs the fundamental charter and immemorial tradition. It cannot and should in order that it truly performs that role.
jurisdiction vested with the COMELEC. not be burdened with the task of dealing with causes in the first
instance. Its original jurisdiction to issue the so-called extraordinary In other words, the Supreme Court’s role to interpret the Constitution
It will, thus, be manifest injustice if the court does not take jurisdiction writs should be exercised only where absolutely necessary or where and act in order to protect constitutional rights when these become
over this case. serious and important reasons exist therefore. Hence, that jurisdiction exigent should not be emasculated by the doctrine in respect of the
should generally be exercised relative to actions or proceedings hierarchy of courts. That has never been the purpose of such
before the Court of Appeals, or before constitutional or other tribunals, doctrine.
I.C bodies or agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This procedural niceties when clearly faced with the need for substantial Fifth, the time element presented in this case cannot be ignored. This
court has "full discretionary power to take cognizance and assume protection. case was filed during the 2013 election period. Although the elections
jurisdiction [over] special civil actions for certiorari . . .filed directly with have already been concluded, future cases may be filed that
it for exceptionally compelling reasons69 or if warranted by the nature In the case before this court, there is a clear threat to the paramount necessitate urgency in its resolution. Exigency in certain situations
of the issues clearly and specifically raised in the petition."70 As right of freedom of speech and freedom of expression which warrants would qualify as an exception for direct resort to this court.
correctly pointed out by petitioners,71 we have provided exceptions to invocation of relief from this court. The principles laid down in this
this doctrine: decision will likely influence the discourse of freedom of speech in the Sixth, the filed petition reviews the act of a constitutional organ.
future, especially in the context of elections. The right to suffrage not COMELEC is a constitutional body. In Albano v. Arranz,80 cited by
First, a direct resort to this court is allowed when there are genuine only includes the right to vote for one’s chosen candidate, but also the petitioners, this court held that "[i]t is easy to realize the chaos that
issues of constitutionality that must be addressed at the most right to vocalize that choice to the public in general, in the hope of would ensue if the Court of First Instance ofeach and every province
immediate time. A direct resort to this court includes availing of the influencing their votes. It may be said that in an election year, the right were [to] arrogate itself the power to disregard, suspend, or contradict
remedies of certiorari and prohibition toassail the constitutionality of to vote necessarily includes the right to free speech and expression. any order of the Commission on Elections: that constitutional body
actions of both legislative and executive branches of the The protection of these fundamental constitutional rights, therefore, would be speedily reduced to impotence."81
government.72 allows for the immediate resort to this court.
In this case, if petitioners sought to annul the actions of COMELEC
In this case, the assailed issuances of respondents prejudice not only Third, cases of first impression75 warrant a direct resort to this court. through pursuing remedies with the lower courts, any ruling on their
petitioners’ right to freedom of expression in the present case, but In cases of first impression, no jurisprudence yet exists that will guide part would not have been binding for other citizens whom
also of others in future similar cases. The case before this court the lower courts on this matter. In Government of the United States v. respondents may place in the same situation. Besides, thiscourt
involves an active effort on the part of the electorate to reform the Purganan,76 this court took cognizance of the case as a matter of first affords great respect to the Constitution and the powers and duties
political landscape. This has become a rare occasion when private impression that may guide the lower courts: imposed upon COMELEC. Hence, a ruling by this court would be in
citizens actively engage the public in political discourse. To quote an the best interest of respondents, in order that their actions may be
eminent political theorist: In the interest of justice and to settle once and for all the important guided accordingly in the future.
issue of bail in extradition proceedings, we deem it best to take
[T]he theory of freedom of expression involves more than a technique cognizance of the present case. Such proceedings constitute a matter Seventh, petitioners rightly claim that they had no other plain, speedy,
for arriving at better social judgments through democratic procedures. of first impression over which there is, as yet, no local jurisprudence and adequate remedy in the ordinary course of law that could free
It comprehends a vision of society, a faith and a whole way of life. to guide lower courts.77 them from the injurious effects of respondents’ acts in violation of their
The theory grew out of an age that was awakened and invigorated by right to freedom of expression.
the idea of new society in which man's mind was free, his fate This court finds that this is indeed a case of first impression involving
determined by his own powers of reason, and his prospects of as it does the issue of whether the right of suffrage includes the right In this case, the repercussions of the assailed issuances on this basic
creating a rational and enlightened civilization virtually unlimited. It is of freedom of expression. This is a question which this court has yet right constitute an exceptionally compelling reason to justify the direct
put forward as a prescription for attaining a creative, progressive, to provide substantial answers to, through jurisprudence. Thus, direct resort to this court. The lack of other sufficient remedies in the course
exciting and intellectually robust community. It contemplates a mode resort to this court is allowed. of law alone is sufficient ground to allow direct resort to this court.
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 Fourth, the constitutional issues raisedare better decided by this Eighth, the petition includes questionsthat are "dictated by public
stagnant.73 court. In Drilon v. Lim,78 this court held that: welfare and the advancement of public policy, or demanded by the
broader interest of justice, or the orders complained of were found to
. . . it will be prudent for such courts, if only out of a becoming be patent nullities, or the appeal was consideredas clearly an
In a democracy, the citizen’s right tofreely participate in the exchange inappropriate remedy."82 In the past, questions similar to these which
of ideas in furtherance of political decision-making is recognized. It modesty, to defer to the higher judgmentof this Court in the
consideration of its validity, which is better determined after a this court ruled on immediately despite the doctrine of hierarchy of
deserves the highest protection the courts may provide, as public courts included citizens’ right to bear arms,83 government contracts
participation in nation-building isa fundamental principle in our thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion.79 (Citation involving modernization of voters’ registration lists,84 and the status
Constitution. As such, their right to engage in free expression of ideas and existence of a public office.85
must be given immediate protection by this court. omitted)

In this case, it is this court, with its constitutionally enshrined judicial This case also poses a question of similar, if not greater import.
A second exception is when the issuesinvolved are of transcendental Hence, a direct action to this court is permitted.
importance.74 In these cases, the imminence and clarity of the threat power, that can rule with finality on whether COMELEC committed
to fundamental constitutional rights outweigh the necessity for grave abuse of discretion or performed acts contrary to the
prudence. The doctrine relating to constitutional issues of Constitution through the assailed issuances. It is not, however, necessary that all of these exceptions must occur
transcendental importance prevents courts from the paralysis of 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 What is generally meant, when it is said that a question is political, Marcos v. Manglapus90 limited the use of the political question
directly. and not judicial, is that it is a matter which is to be exercised by the doctrine:
people in their primary political capacity, or that it has been
I.D specifically delegated to some other department or particular officer of When political questions are involved, the Constitution limits the
the government, withdiscretionary power to act.89 (Emphasis omitted) determination to whether or not there has been a grave abuse of
The concept of a political question discretion amounting to lack or excess of jurisdiction on the part of the
It is not for this court to rehearse and re-enact political debates on official whose action is being questioned. If grave abuse is not
what the text of the law should be. In political forums, particularly the established, the Court will not substitute its judgment for that of the
Respondents argue further that the size limitation and its legislature, the creation of the textof the law is based on a general official concerned and decide a matter which by its nature or by law is
reasonableness is a political question, hence not within the ambit of discussion of factual circumstances, broadly construed in order to for the latter alone to decide.91
this court’s power of review. They cite Justice Vitug’s separate allow for general application by the executive branch. Thus, the
opinion in Osmeña v. COMELEC86 to support their position: creation of the law is not limited by particular and specific facts that How this court has chosen to address the political question doctrine
affect the rights of certain individuals, per se. has undergone an evolution since the timethat it had been first
It might be worth mentioning that Section 26, Article II, of the invoked in Marcos v. Manglapus. Increasingly, this court has taken
Constitution also states that the "State shall guarantee equal access Courts, on the other hand, rule on adversarial positions based on the historical and social context of the case and the relevance of
to opportunities for public service, and prohibit political dynasties as existing facts established on a specific case-to-case basis, where pronouncements of carefully and narrowly tailored constitutional
may be defined by law." I see neither Article IX (C)(4) nor Section 26, parties affected by the legal provision seek the courts’ understanding doctrines. This trend was followed in cases such as Daza v.
Article II, of the Constitution to be all that adversarial or irreconcilably of the law. Singson92 and Coseteng v. Mitra Jr.93
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 The complementary nature of the political and judicial branches of Daza and Coseteng involved a question as to the application of
true, a vantage point in hierarchy of constitutionally-enshrined rights government is essential in order to ensure that the rights of the Article VI, Section 18 of the 1987 Constitution involving the removal of
but, like all fundamental rights, it is not without limitations. general public are upheld at all times. In order to preserve this petitioners from the Commission on Appointments. In times past, this
balance, branches of government must afford due respectand would have involved a quint essentially political question as it related
deference for the duties and functions constitutionally delegated to to the dominance of political parties in Congress. However, in these
The case is not about a fight between the "rich" and the "poor" or the other. Courts cannot rush to invalidate a law or rule. Prudence cases, this court exercised its power of judicial review noting that the
between the "powerful" and the "weak" in our society but it is to me a dictates that we are careful not to veto political acts unless we can requirement of interpreting the constitutional provision involved the
genuine attempt on the part of Congress and the Commission on craft doctrine narrowly tailored to the circumstances of the case. legality and not the wisdom of a manner by which a constitutional duty
Elections to ensure that all candidates are given an equal chance to or power was exercised. This approach was again reiterated in
media coverage and thereby be equally perceived as giving real life to Defensor Santiago v. Guingona, Jr.94
the candidates’ right of free expression rather than being viewed as The case before this court does not call for the exercise of prudence
an undue restriction of that freedom. The wisdom in the enactment of or modesty. There is no political question. It can be acted upon by this
the law, i.e., that which the legislature deems to be best in giving life court through the expanded jurisdiction granted to this court through In Integrated Bar of the Philippines v. Zamora,95 this court declared
to the Constitutional mandate, is not for the Court to question; it is a Article VIII, Section 1 of the Constitution. again that the possible existence ofa political question did not bar an
matter that lies beyond the normal prerogatives of the Court to pass examination of whether the exercise of discretion was done with
upon.87 A political question arises in constitutional issues relating to the grave abuse of discretion. In that case, this court ruled on the
powers or competence of different agencies and departments of the question of whether there was grave abuse of discretion in the
executive or those of the legislature. The political question doctrine is President’s use of his power to call out the armed forces to prevent
This separate opinion is cogent for the purpose it was said. But it is and suppress lawless violence.
not in point in this case. 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 In Estrada v. Desierto,96 this court ruled that the legal question as to
The present petition does not involve a dispute between the rich and situation, presumptively, this court should act with deference. It will whether a former President resigned was not a political question even
poor, or the powerful and weak, on their equal opportunities for media decline to void an act unless the exercise of that power was so if the consequences would be to ascertain the political legitimacy of a
coverage of candidates and their right to freedom of expression. This capricious and arbitrary so as to amount to grave abuse of discretion. successor President.
case concerns the right of petitioners, who are non-candidates, to
post the tarpaulin in their private property, asan exercise of their right
of free expression. Despite the invocation of the political question The concept of a political question, however, never precludes judicial Many constitutional cases arise from political crises. The actors in
doctrine by respondents, this court is not proscribed from deciding on review when the act of a constitutional organ infringes upon a such crises may use the resolution of constitutional issues as
the merits of this case. fundamental individual or collective right. Even assuming arguendo leverage. But the expanded jurisdiction of this court now mandates a
that the COMELEC did have the discretion to choose the manner of duty for it to exercise its power of judicial review expanding on
regulation of the tarpaulin in question, it cannot do so by abridging the principles that may avert catastrophe or resolve social conflict.
In Tañada v. Cuenco,88 this court previously elaborated on the fundamental right to expression.
concept of what constitutes a political question:
This court’s understanding of the political question has not been static The "allocation of constitutional boundaries" is a task that this Court Respondents point out that petitioners failed to comply with the
or unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this must perform under the Constitution. Moreover, as held in a recent requirement in Rule 65 that "there is no appeal, or any plain, speedy,
court held: case, "(t)he political question doctrine neither interposes an obstacle and adequate remedy in the ordinary course of law."103 They add that
to judicial determination of the rival claims. The jurisdiction to delimit the proper venue to assail the validity of the assailed issuances was
While it is true that courts cannot inquire into the manner in which the constitutional boundaries has been given to this Court. It cannot in the course of an administrative hearing to be conducted by
President's discretionary powers are exercised or into the wisdom for abdicate that obligation mandated by the 1987 Constitution, although COMELEC.104 In the event that an election offense is filed against
its exercise, it is also a settled rule that when the issue involved said provision by no means does away with the applicability of the petitioners for posting the tarpaulin, they claim that petitioners should
concerns the validity of such discretionary powers or whether said principle in appropriate cases." (Emphasis and italics supplied) resort to the remedies prescribed in Rule 34 of the COMELEC Rules
powers are within the limits prescribed by the Constitution, We will not of Procedure.105
decline to exercise our power of judicial review. And such review does And in Daza v. Singson, speaking through Justice Isagani Cruz, this
not constitute a modification or correction of the act of the President, Court ruled: The argument on exhaustion of administrative remedies is not proper
nor does it constitute interference with the functions of the in this case.
President.98 In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to Despite the alleged non-exhaustion of administrative remedies, it is
The concept of judicial power in relation to the concept of the political assume that the issue presented before us was political in nature, we clear that the controversy is already ripe for adjudication. Ripeness is
question was discussed most extensively in Francisco v. HRET.99 In would still not be precluded from resolving it under the expanded the "prerequisite that something had by then been accomplished or
this case, the House of Representatives arguedthat the question of jurisdiction conferred upon us that now covers, in proper cases, even performed by either branch [or in this case, organ of government]
the validity of the second impeachment complaint that was filed the political question.x x x (Emphasis and italics supplied.) before a court may come into the picture."106
against former Chief Justice Hilario Davide was a political question
beyond the ambit of this court. Former Chief Justice Reynato Puno .... Petitioners’ exercise of their rightto speech, given the message and
elaborated on this concept in his concurring and dissenting opinion: their medium, had understandable relevance especially during the
In our jurisdiction, the determination of whether an issue involves a elections. COMELEC’s letter threatening the filing of the election
To be sure, the force to impugn the jurisdiction of this Court becomes truly political and non-justiciable question lies in the answer to the offense against petitioners is already an actionable infringement of
more feeble in light of the new Constitution which expanded the question of whether there are constitutionally imposed limits on this right. The impending threat of criminal litigation is enough to
definition of judicial power as including "the duty of the courts of powers or functions conferred upon political bodies. If there are, then curtail petitioners’ speech.
justice to settle actual controversies involving rights which are legally our courts are duty-bound to examine whether the branch or
demandable and enforceable, and to determine whether or not there instrumentality of the government properly acted within such In the context of this case, exhaustion of their administrative remedies
has been a grave abuse of discretion amounting to lack or excess of limits.101 (Citations omitted) as COMELEC suggested in their pleadings prolongs the violation of
jurisdiction on the part of any branch or instrumentality of the their freedom of speech.
Government." As well observed by retired Justice Isagani Cruz, this
expanded definition of judicial power considerably constricted the As stated in Francisco, a political question will not be considered
scope of political question. He opined that the language luminously justiciable if there are no constitutionally imposed limits on powers or Political speech enjoys preferred protection within our constitutional
suggests that this duty (and power) is available even against the functions conferred upon political bodies. Hence, the existence of order. In Chavez v. Gonzales,107 Justice Carpio in a separate opinion
executive and legislative departments including the President and the constitutionally imposed limits justifies subjecting the official actions of emphasized: "[i]f everthere is a hierarchy of protected expressions,
Congress, in the exercise of their discretionary powers.100 (Emphasis the body to the scrutiny and review of this court. political expression would occupy the highest rank, and among
in the original, citations omitted) different kinds of political expression, the subject of fair and honest
In this case, the Bill of Rights gives the utmost deference to the right elections would be at the top."108 Sovereignty resides in the
to free speech. Any instance that this right may be abridged demands people.109 Political speech is a direct exercise of the sovereignty. The
Francisco also provides the cases which show the evolution of the principle of exhaustion of administrative remedies yields in order to
political question, as applied in the following cases: judicial scrutiny. It does not fall squarely into any doubt that a political
question brings. protect this fundamental right.

In Marcos v. Manglapus, this Court, speaking through Madame Even assuming that the principle of exhaustion of administrative
Justice Irene Cortes, held: The present Constitution limits resort to the I.E
remedies is applicable, the current controversy is within the
political question doctrine and broadens the scope of judicial inquiry exceptions to the principle. In Chua v. Ang,110 this court held:
into areas which the Court,under previous constitutions, would have Exhaustion of administrative remedies
normally left to the political departments to decide. x x x
On the other hand, prior exhaustion of administrative remedies may
Respondents allege that petitioners violated the principle of be dispensed with and judicial action may be validly resorted to
In Bengzon v. Senate Blue Ribbon Committee, through Justice exhaustion of administrative remedies. Respondents insist that immediately: (a) when there is a violation of due process; (b) when
Teodoro Padilla, this Court declared: petitioners should have first brought the matter to the COMELEC En the issue involved is purely a legal question; (c) when the
Banc or any of its divisions.102 administrative action is patently illegal amounting to lack or excess of
jurisdiction; (d) when there is estoppel on the part ofthe administrative First, respondents cite Article IX-C, Section 4 of the Constitution, Petitioners assail the "Notice to Remove Campaign Materials" issued
agency concerned; (e) when there is irreparable injury; (f) when the which provides: by COMELEC. This was followed bythe assailed letter regarding the
respondent is a department secretary whose acts as analter ego of "election propaganda material posted on the church vicinity promoting
the President bear the implied and assumed approval of the latter; (g) Section 4. The Commission may,during the election period, supervise for or against the candidates and party-list groups. . . ."123
when to require exhaustion of administrative remedies would be or regulate the enjoyment or utilization of all franchises or permits for
unreasonable; (h) when it would amount to a nullification of a claim; (i) the operation of transportation and other public utilities, media of Section 9 of the Fair Election Act124 on the posting of campaign
when the subject matter is a private land in land case proceedings; (j) communication or information, all grants, special privileges, or materials only mentions "parties" and "candidates":
whenthe rule does not provide a plain, speedy and adequate remedy; concessions granted by the Government or any subdivision, agency,
or (k) when there are circumstances indicating the urgency of judicial or instrumentality thereof, including any government-owned or
intervention."111 (Emphasis supplied, citation omitted) Sec. 9. Posting of Campaign Materials. - The COMELEC may
controlled corporation or its subsidiary. Such supervision or regulation authorize political parties and party-list groups to erect common
shall aim to ensure equal opportunity, time, and space, and the right poster areas for their candidates in not more than ten (10) public
The circumstances emphasized are squarely applicable with the to reply, including reasonable, equal rates therefor, for public places such as plazas, markets, barangay centers and the like,
present case. First, petitioners allegethat the assailed issuances information campaigns and forums among candidates in connection wherein candidates can post, display or exhibit election propaganda:
violated their right to freedom of expression and the principle of with the objective of holding free, orderly, honest, peaceful, and Provided, That the size ofthe poster areas shall not exceed twelve
separation of church and state. This is a purely legal question. credible elections.114 (Emphasis supplied) (12) by sixteen (16) feet or its equivalent. Independent candidates
Second, the circumstances of the present case indicate the urgency with no political parties may likewise be authorized to erect common
of judicial intervention considering the issue then on the RH Law as Sanidad v. COMELEC115 involved the rules promulgated by poster areas in not more than ten (10) public places, the size of which
well as the upcoming elections. Thus, to require the exhaustion of COMELEC during the plebiscite for the creation of the Cordillera shall not exceed four (4) by six (6) feet or its equivalent. Candidates
administrative remedies in this case would be unreasonable. Autonomous Region.116 Columnist Pablito V. Sanidad questioned the may post any lawful propaganda material in private places with the
provision prohibiting journalists from covering plebiscite issues on the consent of the owner thereof, and in public places or property which
Time and again, we have held that this court "has the power to relax day before and on plebiscite day.117 Sanidad argued that the shall be allocated equitably and impartially among the candidates.
or suspend the rules or to except a case from their operation when prohibition was a violation of the "constitutional guarantees of the (Emphasis supplied)
compelling reasons so warrant, or whenthe purpose of justice freedom of expression and of the press. . . ."118 We held that the "evil
requires it, [and when] [w]hat constitutes [as] good and sufficient sought to be prevented by this provision is the possibility that a Similarly, Section 17 of COMELEC Resolution No. 9615, the rules
cause that will merit suspension of the rules is discretionary upon the franchise holder may favor or give any undue advantage to a and regulations implementing the Fair Election Act, provides as
court".112 Certainly, this case of first impression where COMELEC has candidate in terms of advertising space or radio or television follows:
threatenedto prosecute private parties who seek to participate in the time."119 This court found that "[m]edia practitioners exercising their
elections by calling attention to issues they want debated by the freedom of expression during plebiscite periods are neither the
publicin the manner they feel would be effective is one of those franchise holders nor the candidates[,]"120 thus, their right to SECTION 17. Posting of Campaign Materials. - Parties and
cases. expression during this period may not be regulated by COMELEC.121 candidates may post any lawful campaign material in:

II Similar to the media, petitioners in the case at bar are neither a. Authorized common poster areasin public places subject
SUBSTANTIVE ISSUES franchise holders nor candidates. II.A.2 to the requirements and/or limitations set forth in the next
following section; and
II.A Respondents likewise cite Article IX-C, Section 2(7) of the
Constitution as follows:122 b. Private places provided it has the consent of the owner
thereof.
COMELEC had no legal basis to regulate expressions made by
private citizens Sec. 2. The Commission on Elections shall exercise the following
powers and functions: The posting of campaign materials in public places outside of the
designated common poster areas and those enumerated under
Respondents cite the Constitution, laws, and jurisprudence to support Section 7 (g) of these Rules and the like is prohibited. Persons
their position that they had the power to regulate the .... posting the same shall be liable together with the candidates and
tarpaulin.113 However, all of these provisions pertain to candidates and other persons who caused the posting. It will be presumed that the
political parties. Petitioners are not candidates. Neither do theybelong (7) Recommend to the Congress effective measures to minimize candidates and parties caused the posting of campaign materials
to any political party. COMELEC does not have the authority to election spending, including limitation of places where propaganda outside the common poster areas if they do not remove the same
regulate the enjoyment of the preferred right to freedom of expression materials shall be posted, and to prevent and penalize all forms of within three (3) days from notice which shall be issued by the Election
exercised by a non-candidate in this case. election frauds, offenses, malpractices, and nuisance candidates. Officer of the city or municipality where the unlawful election
(Emphasis supplied) Based on the enumeration made on actsthat propaganda are posted or displayed.
II.A.1 may be penalized, it will be inferred that this provision only affects
candidates.
Members of the PNP and other law enforcement agencies called commentaries and opinions regarding the candidates, their probable candidates proposed to be nominated in a forthcoming
upon by the Election Officeror other officials of the COMELEC shall qualifications, and program for government. Compared to political party convention shall not be construed as part of any
apprehend the violators caught in the act, and file the appropriate Sanidadwherein the columnists lost their ability to give their election campaign or partisan political activity contemplated under this
charges against them. (Emphasis supplied) commentary on the issues involving the plebiscite, National Press Article. (Emphasis supplied)
Clubdoes not involve the same infringement.
Respondents considered the tarpaulin as a campaign material in their True, there is no mention whether election campaign is limited only to
issuances. The above provisions regulating the posting of campaign In the case at bar, petitioners lost their ability to give a commentary the candidates and political parties themselves. The focus of the
materials only apply to candidates and political parties, and on the candidates for the 2013 national elections because of the definition is that the act must be "designed to promote the election or
petitioners are neither of the two. COMELEC notice and letter. It was not merelya regulation on the defeat of a particular candidate or candidates to a public office."
campaigns of candidates vying for public office. Thus, National Press
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" Clubdoes not apply to this case. In this case, the tarpaulin contains speech on a matter of public
also states that these are "allowed for all registered political parties, concern, that is, a statement of either appreciation or criticism on
national, regional, sectoral parties or organizations participating under Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as votes made in the passing of the RH law. Thus, petitioners invoke
the party-list elections and for all bona fide candidates seeking the Omnibus Election Code, defines an"election campaign" as their right to freedom of expression.
national and local elective positions subject to the limitation on follows:
authorized expenses of candidates and political parties. . . ." Section II.B
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 The violation of the constitutional right
political parties. Some level of coordination with the candidates and (b) The term "election campaign" or "partisan political activity" refers
political parties for whom the election propaganda are released would to an act designed to promote the election or defeat of a particular to freedom of speech and expression
ensure that these candidates and political parties maintain within the candidate or candidates to a public office which shall include:
authorized expenses limitation. Petitioners contend that the assailed notice and letter for the removal
(1) Forming organizations, associations, clubs, committees of the tarpaulin violate their fundamental right to freedom of
The tarpaulin was not paid for byany candidate or political or other groups of persons for the purpose of soliciting votes expression.
party.125 There was no allegation that petitioners coordinated with any and/or undertaking any campaign for or against a candidate;
of the persons named in the tarpaulin regarding its posting. On the On the other hand, respondents contend that the tarpaulin is an
other hand, petitioners posted the tarpaulin as part of their advocacy (2) Holding political caucuses, conferences, meetings, election propaganda subject to their regulation pursuant to their
against the RH Law. Respondents also cite National Press Club v. rallies, parades, or other similar assemblies, for the purpose mandate under Article IX-C, Section 4 of the Constitution. Thus, the
COMELEC126 in arguing that its regulatory power under the of soliciting votes and/or undertaking any campaign or assailed notice and letter ordering itsremoval for being oversized are
Constitution, to some extent, set a limit on the right to free speech propaganda for or against a candidate; valid and constitutional.131
during election period.127
(3) Making speeches, announcements or commentaries, or II.B.1
National Press Club involved the prohibition on the sale and donation holding interviews for or against the election of any
of space and time for political advertisements, limiting political candidate for public office;
advertisements to COMELEC-designated space and time. This case Fundamental to the consideration of this issue is Article III, Section 4
was brought by representatives of mass media and two candidates of the Constitution:
(4) Publishing or distributing campaign literature or materials
for office in the 1992 elections. They argued that the prohibition on designed to support or oppose the election of any candidate;
the sale and donation of space and time for political advertisements is or Section 4. No law shall be passed abridging the freedom of speech,
tantamount to censorship, which necessarily infringes on the freedom of expression, or of the press, or the right of the people peaceably to
of speech of the candidates.128 assemble and petition the government for redress of grievances.132
(5) Directly or indirectly soliciting votes, pledges or support
for or against a candidate.
This court upheld the constitutionality of the COMELEC prohibition in No law. . .
National Press Club. However, this case does not apply as most of
the petitioners were electoral candidates, unlike petitioners in the The foregoing enumerated acts ifperformed for the purpose of
enhancing the chances of aspirants for nomination for candidacy to a While it is true that the present petition assails not a law but an
instant case. Moreover, the subject matter of National Press Club,
public office by a political party, aggroupment, or coalition of parties opinion by the COMELEC Law Department, this court has applied
Section 11(b) of Republic Act No. 6646,129 only refers to a particular
shall not be considered as election campaign or partisan election Article III, Section 4 of the Constitution even to governmental acts.
kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not activity. Public expressions or opinions or discussions of probable
infringe upon the right of reporters or broadcasters to air their issues in a forthcoming electionor on attributes of or criticisms against
In Primicias v. Fugoso,133 respondent Mayor applied by analogy FR. BERNAS: "Expression" is more broad than speech. We accept it. Freedom of speech includes the right to be silent. Aptly has it been
Section 1119 of the Revised Ordinances of 1927 of Manila for the said that the Bill of Rights that guarantees to the individual the liberty
public meeting and assembly organized by petitioner MR. BROCKA: Thank you. to utter what is in his mind also guarantees to him the liberty not to
Primicias.134 Section 1119 requires a Mayor’s permit for the use of utter what is not in his mind. The salute is a symbolic manner of
streets and public places for purposes such as athletic games, sports, communication that conveys its messageas clearly as the written or
or celebration of national holidays.135 What was questioned was not a THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted? spoken word. As a valid form of expression, it cannot be compelled
law but the Mayor’s refusal to issue a permit for the holding of any more than it can be prohibited in the face of valid religious
petitioner’s public meeting.136 Nevertheless, this court recognized the FR. BERNAS: Yes. objections like those raised in this petition. To impose it on the
constitutional right to freedom of speech, to peaceful assembly and to petitioners is to deny them the right not to speak when their religion
petition for redress of grievances, albeit not absolute,137 and the THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? bids them to be silent. This coercion of conscience has no place in
petition for mandamus to compel respondent Mayor to issue the (Silence) The Chair hears none; the amendment is approved. the free society.
permit was granted.138

FR. BERNAS: So, that provision will now read: "No law shall be The democratic system provides for the accommodation of diverse
In ABS-CBN v. COMELEC, what was assailed was not a law but passed abridging the freedom of speech, expression or of the ideas, including the unconventional and even the bizarre or eccentric.
COMELEC En Banc Resolution No. 98-1419 where the COMELEC press . . . ."141 Speech may be said to be inextricably linked to The will of the majority prevails, but it cannot regiment thought by
resolved to approve the issuance of a restraining order to stop ABS- freedom itself as "[t]he right to think is the beginning of freedom, and prescribing the recitation by rote of its opinions or proscribing the
CBN from conducting exit surveys.139 The right to freedom of speech must be protected from the government because speech is assertion of unorthodox or unpopular views as inthis case. The
expression was similarly upheld in this case and, consequently, the the beginning of thought."142 conscientious objections of the petitioners, no less than the
assailed resolution was nullified and set aside.140 impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the
II.B.2 soul within rebels.151
. . . shall be passed abridging. . .

Communication is an essential outcome of protected Even before freedom "of expression" was included in Article III,
All regulations will have an impact directly or indirectly on expression. speech.143 Communication exists when "(1) a speaker, seeking to
The prohibition against the abridgment of speech should not mean an Section 4 of the present Constitution,this court has applied its
signal others, uses conventional actions because he orshe precedent version to expressions other than verbal utterances.
absolute prohibition against regulation. The primary and incidental reasonably believes that such actions will be taken by the audience in
burden on speech must be weighed against a compelling state the manner intended; and (2) the audience so takes the
interest clearly allowed in the Constitution. The test depends on the actions."144 "[I]n communicative action[,] the hearer may respond to In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners
relevant theory of speech implicit in the kind of society framed by our the claims by . . . either accepting the speech act’s claims or opposing objected to the classification of the motion picture "Kapit sa Patalim"
Constitution. them with criticism or requests for justification."145 as "For Adults Only." They contend that the classification "is without
legal and factual basis and is exercised as impermissible restraint of
. . . of expression. . . artistic expression."153 This court recognized that "[m]otion pictures
Speech is not limited to vocal communication. "[C]onduct is treated as are important both as a medium for the communication of ideas and
a form of speech sometimes referred to as ‘symbolic the expression of the artistic impulse."154 It adds that "every
Our Constitution has also explicitly included the freedom of speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are writer,actor, or producer, no matter what medium of expression he
expression, separate and in addition to the freedom of speech and of combined in the same course of conduct,’ the ‘communicative may use, should be freed from the censor."155 This court found that
the press provided in the US Constitution. The word "expression" was element’ of the conduct may be ‘sufficient to bring into play the [right "[the Board’s] perception of what constitutes obscenity appears to be
added in the 1987 Constitution by Commissioner Brocka for having a to freedom of expression].’"147 unduly restrictive."156 However, the petition was dismissed solely on
wider scope: the ground that there were not enough votes for a ruling of grave
The right to freedom of expression, thus, applies to the entire abuse of discretion in the classification made by the Board.157
MR. BROCKA: This is a very minor amendment, Mr. Presiding continuum of speech from utterances made to conduct enacted, and
Officer. On Section 9, page 2, line 29, it says: "No law shall be passed even to inaction itself as a symbolic manner of communication. II.B.3
abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if In Ebralinag v. The Division Superintendent of Schools of
not, add the words AND EXPRESSION after the word "speech," Size does matter
Cebu,148 students who were members of the religious sect Jehovah’s
because it is more expansive, it has a wider scope, and it would refer Witnesses were to be expelled from school for refusing to salute the
to means of expression other than speech. flag, sing the national anthem, and recite the patriotic pledge.149 In his The form of expression is just as important as the information
concurring opinion, Justice Cruz discussed how the salute is a conveyed that it forms part of the expression. The present case is in
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee symbolic manner of communication and a valid form of point.
say? expression.150 He adds that freedom of speech includes even the right
to be silent: It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin II.B.4 market, and that truth is the only ground upon which their wishes
allows larger fonts which make it easier to view its messages from safely can be carried out.166
greater distances. Furthermore, a larger tarpaulin makes it easier for There are several theories and schools of thought that strengthen the
passengers inside moving vehicles to read its content. Compared with need to protect the basic right to freedom of expression. The way it works, the exposure to the ideas of others allows one to
the pedestrians, the passengers inside moving vehicles have lesser "consider, test, and develop their own conclusions."167 A free, open,
time to view the content of a tarpaulin. The larger the fonts and and dynamic market place of ideas is constantly shaping new ones.
images, the greater the probability that it will catch their attention and, First, this relates to the right ofthe people to participate in public
affairs, including the right to criticize government actions. This promotes both stability and change where recurring points may
thus, the greater the possibility that they will understand its message. crystallize and weak ones may develop. Of course, free speech is
more than the right to approve existing political beliefs and economic
Second, the size of the tarpaulin may underscore the importance of Proponents of the political theory on "deliberative democracy" submit arrangements as it includes, "[t]o paraphrase Justice Holmes, [the]
the message to the reader. From an ordinary person’s perspective, that "substantial, open, [and] ethical dialogue isa critical, and indeed freedom for the thought that we hate, no less than for the thought that
those who post their messages in larger fonts care more about their defining, feature of a good polity."159 This theory may be considered agrees with us."168 In fact, free speech may "best serve its high
message than those who carry their messages in smaller media. The broad, but it definitely "includes [a] collective decision making with the purpose when it induces a condition of unrest, creates dissatisfaction
perceived importance given by the speakers, in this case petitioners, participation of all who will beaffected by the decision."160 It anchors with conditions as they are, or even stirs people to anger."169 It is in
to their cause is also part of the message. The effectivity of on the principle that the cornerstone of every democracy is that this context that we should guard against any curtailment of the
communication sometimes relies on the emphasis put by the sovereignty resides in the people.161 To ensure order in running the people’s right to participate in the free trade of ideas.
speakers and onthe credibility of the speakers themselves. Certainly, state’s affairs, sovereign powers were delegated and individuals
larger segments of the public may tend to be more convinced of the would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative Third, free speech involves self-expression that enhances human
point made by authoritative figures when they make the effort to dignity. This right is "a means of assuring individual self-
emphasize their messages. democracy may evolve to the right of the people to make government
accountable. Necessarily, this includes the right of the people to fulfillment,"170 among others. In Philippine Blooming Mills Employees
criticize acts made pursuant to governmental functions. Organization v. Philippine Blooming Mills Co., Inc,171 this court
Third, larger spaces allow for more messages. Larger spaces, discussed as follows:
therefore, may translate to more opportunities to amplify, explain, and
argue points which the speakers might want to communicate. Rather Speech that promotes dialogue on publicaffairs, or airs out grievances
and political discontent, should thus be protected and encouraged. The rights of free expression, free assembly and petition, are not only
than simply placing the names and images of political candidates and civil rights but also political rights essential to man's enjoyment of his
an expression of support, larger spaces can allow for brief but life, to his happiness and to his full and complete fulfillment.Thru
memorable presentations of the candidates’ platforms for Borrowing the words of Justice Brandeis, "it is hazardous to these freedoms the citizens can participate not merely in the periodic
governance. Larger spaces allow for more precise inceptions of discourage thought, hope and imagination; that fear breeds establishment of the government through their suffrage but also in the
ideas, catalyze reactions to advocacies, and contribute more to a repression; that repression breeds hate; that hate menaces stable administration of public affairs as well as in the discipline of abusive
more educated and reasoned electorate. A more educated electorate government; that the path of safety lies in the opportunity to discuss public officers. The citizen is accorded these rights so that he can
will increase the possibilities of both good governance and freely supposed grievances and proposed remedies."162 appeal to the appropriate governmental officers or agencies for
accountability in our government. redress and protection as well as for the imposition of the lawful
In this jurisdiction, this court held that "[t]he interest of society and the sanctions on erring public officers and employees.172 (Emphasis
These points become more salient when it is the electorate, not the maintenance of good government demand a full discussion of public supplied)
candidates or the political parties, that speaks. Too often, the terms of affairs."163 This court has, thus, adopted the principle that "debate on
public discussion during elections are framed and kept hostage by public issues should be uninhibited, robust,and wide open . . . Fourth, expression is a marker for group identity. For one, "[v]oluntary
brief and catchy but meaningless sound bites extolling the character [including even] unpleasantly sharp attacks on government and public associations perform [an] important democratic role [in providing]
of the candidate. Worse, elections sideline political arguments and officials."164 forums for the development of civil skills, for deliberation, and for the
privilege the endorsement by celebrities. Rather than provide formation of identity and community spirit[,] [and] are largely immune
obstacles to their speech, government should in fact encourage it. Second, free speech should be encouraged under the concept of a from [any] governmental interference."173 They also "provide a buffer
Between the candidates and the electorate, the latter have the better market place of ideas. This theory was articulated by Justice Holmes between individuals and the state - a free space for the development
incentive to demand discussion of the more important issues. in that "the ultimate good desired is better reached by [the] free trade of individual personality, distinct group identity, and dissident ideas -
Between the candidates and the electorate, the former have better in ideas:"165 and a potential source of opposition to the state."174 Free speech must
incentives to avoid difficult political standpoints and instead focus on be protected as the vehicle to find those who have similar and shared
appearances and empty promises. values and ideals, to join together and forward common goals.
When men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very
Large tarpaulins, therefore, are not analogous to time and foundations of their own conduct that the ultimate good desired is Fifth, the Bill of Rights, free speech included, is supposed to "protect
place.158 They are fundamentally part of expression protected under better reached by free trade in ideas - that the best test of truth is the individuals and minorities against majoritarian abuses perpetrated
Article III, Section 4 of the Constitution. power of the thought to get itself accepted in the competition of the through [the] framework [of democratic governance]."175 Federalist
framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be and other forms of advertising messages or announcements used by and all government authority emanates from them" (Section 1, Article
tyrannized or plundered by despotic federal officials"176 and the commercial advertisers. Political advertising includes matters, not II). Translating this declaration into actuality, the Philippines is a
minorities who may be oppressed by "dominant factions of the falling within the scope of personal opinion, that appear on any republic because and solely because the people in it can be governed
electorate [that] capture [the] government for their own selfish Internet website, including, but not limited to, social networks, only by officials whom they themselves have placed in office by their
ends[.]"177 According to Madison, "[i]t is of great importance in a blogging sites, and micro-blogging sites, in return for consideration, or votes. And in it is on this cornerstone that I hold it tobe self-evident
republic not only to guard the society against the oppression of its otherwise capable of pecuniary estimation. that when the freedoms of speech, press and peaceful assembly and
rulers, but to guard one part of the society against the injustice of the redress of grievances are being exercised in relation to suffrage or
other part."178 We should strive to ensure that free speech is protected On the other hand, petitioners invoke their "constitutional right to asa means to enjoy the inalienable right of the qualified citizen to
especially in light of any potential oppression against those who find communicate their opinions, views and beliefs about issues and vote, they are absolute and timeless. If our democracy and
themselves in the fringes on public issues. candidates."188 They argue that the tarpaulin was their statement of republicanism are to be worthwhile, the conduct of public affairs by
approval and appreciation of the named public officials’ act of voting our officials must be allowed to suffer incessant and unabating
Lastly, free speech must be protected under the safety valve against the RH Law, and their criticism toward those who voted in its scrutiny, favorable or unfavorable, everyday and at all times. Every
theory.179 This provides that "nonviolent manifestations of dissent favor.189 It was "part of their advocacy campaign against the RH holder of power in our government must be ready to undergo
reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . Law,"190 which was not paid for by any candidate or political exposure any moment of the day or night, from January to December
resulting in the ‘banking up of a menacing flood of sullen anger party.191 Thus, "the questioned orders which . . . effectively every year, as it is only in this way that he can rightfully gain the
behind the walls of restriction’"181 has been used to describe the effect restrain[ed] and curtail[ed] [their] freedom of expression should be confidence of the people. I have no patience for those who would
of repressing nonviolent outlets.182 In order to avoid this situation and declared unconstitutional and void."192 regard public dissection of the establishment as an attribute to be
prevent people from resorting to violence, there is a need for peaceful indulged by the people only at certain periods of time. I consider the
methods in making passionate dissent. This includes "free expression freedoms of speech, press and peaceful assembly and redress of
This court has held free speech and other intellectual freedoms as grievances, when exercised in the name of suffrage, as the very
and political participation"183 in that they can "vote for candidates who "highly ranked in our scheme of constitutional values."193 These rights
share their views, petition their legislatures to [make or] change means by which the right itself to vote can only be properly enjoyed.It
enjoy precedence and primacy.194 In Philippine Blooming Mills, this stands to reason therefore, that suffrage itself would be next to
laws, . . . distribute literature alerting other citizens of their court discussed the preferred position occupied by freedom of
concerns[,]"184 and conduct peaceful rallies and other similar useless if these liberties cannot be untrammelled [sic] whether as to
expression: degree or time.198 (Emphasis supplied)
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. Property and property rights can belost thru prescription; but human Not all speech are treated the same. In Chavez v. Gonzales, this
rights are imprescriptible. If human rights are extinguished by the court discussed that some types of speech may be subject to
passage of time, then the Bill of Rights is a useless attempt to limit regulation:
II.B.5 the power of government and ceases to be an efficacious shield
against the tyranny of officials, of majorities, ofthe influential and
Every citizen’s expression with political consequences enjoys a high powerful, and of oligarchs - political, economic or otherwise. Some types of speech may be subjected to some regulation by the
degree of protection. Respondents argue that the tarpaulinis election State under its pervasive police power, in order that it may not be
propaganda, being petitioners’ way of endorsing candidates who injurious to the equal right of others or those of the community or
In the hierarchy of civil liberties, the rights of free expression and of society. The difference in treatment is expected because the relevant
voted against the RH Law and rejecting those who voted for it.186 As assembly occupy a preferred position as they are essential to the
such, it is subject to regulation by COMELEC under its constitutional interests of one type of speech, e.g., political speech, may vary from
preservation and vitality of our civil and political institutions; and such those of another, e.g., obscene speech. Distinctionshave therefore
mandate.187 Election propaganda is defined under Section 1(4) of priority "gives these liberties the sanctity and the sanction not
COMELEC Resolution No. 9615 as follows: SECTION 1. been made in the treatment, analysis, and evaluation ofthe
permitting dubious intrusions."195 (Citations omitted) permissible scope of restrictions on various categories of speech. We
Definitions . . .
have ruled, for example, that in our jurisdiction slander or libel, lewd
This primordial right calls for utmost respect, more so "when what and obscene speech, as well as "fighting words" are not entitled to
.... may be curtailed is the dissemination of information to make more constitutional protection and may be penalized.199 (Citations omitted)
meaningful the equally vital right of suffrage."196 A similar idea
4. The term "political advertisement" or "election propaganda" refers appeared in our jurisprudence as early as 1969, which was Justice We distinguish between politicaland commercial speech. Political
to any matter broadcasted, published, printed, displayed or exhibited, Barredo’s concurring and dissenting opinion in Gonzales v. speech refers to speech "both intended and received as a contribution
in any medium, which contain the name, image, logo, brand, insignia, COMELEC:197 to public deliberation about some issue,"200 "foster[ing] informed and
color motif, initials, and other symbol or graphic representation that is civicminded deliberation."201 On the other hand, commercial speech
capable of being associated with a candidate or party, and is intended I like to reiterate over and over, for it seems this is the fundamental has been defined as speech that does "no more than propose a
to draw the attention of the public or a segment thereof to promote or point others miss, that genuine democracy thrives only where the commercial transaction."202 The expression resulting from the content
oppose, directly or indirectly, the election of the said candidate or power and right of the people toelect the men to whom they would of the tarpaulin is, however, definitely political speech. In Justice
candidates to a public office. In broadcast media, political entrust the privilege to run the affairs of the state exist. In the Brion’s dissenting opinion, he discussed that "[t]he content of the
advertisements may take the form of spots, appearances on TV language of the declaration of principles of our Constitution, "The tarpaulin, as well as the timing of its posting, makes it subject of the
shows and radio programs, live or taped announcements, teasers, Philippines is a republican state. Sovereignty resides in the people regulations in RA 9006 and Comelec Resolution No. 9615."203 He
adds that "[w]hile indeed the RH issue, by itself,is not an Personal opinions, views, and preferences for candidates, contained Allowing citizens to air grievances and speak constructive criticisms
electoralmatter, the slant that the petitioners gave the issue converted in blogs shall not be considered acts of election campaigning or against their government contributes to every society’s goal for
the non-election issue into a live election one hence, Team Buhay partisan politicalactivity unless expressed by government officials in development. It puts forward matters that may be changed for the
and Team Patay and the plea to support one and oppose the the Executive Department, the Legislative Department, the Judiciary, better and ideas that may be deliberated on to attain that purpose.
other."204 the Constitutional Commissions, and members of the Civil Service. Necessarily, it also makes the government accountable for acts that
violate constitutionally protected rights.
While the tarpaulin may influence the success or failure of the named In any event, this case does not refer to speech in cyberspace, and its
candidates and political parties, this does not necessarily mean it is effects and parameters should be deemed narrowly tailored only in In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act
election propaganda. The tarpaulin was not paid for or posted "in relation to the facts and issues in this case. It also appears that such No. 6646, which prohibits mass media from selling print space and air
return for consideration" by any candidate, political party, or party-list wording in COMELEC Resolution No. 9615 does not similarly appear time for campaign except to the COMELEC, to be a democracy-
group. in Republic Act No. 9006, the law it implements. enhancing measure.216 This court mentioned how "discussion of
public issues and debate on the qualifications of candidates in an
The second paragraph of Section 1(4) of COMELEC Resolution No. We should interpret in this manner because of the value of political election are essential to the proper functioning of the government
9615, or the rules and regulations implementing Republic Act No. speech. established by our Constitution."217
9006 as an aid to interpret the law insofar as the facts of this case
requires, states: As early as 1918, in United States v. Bustos,205 this court recognized As pointed out by petitioners, "speech serves one of its greatest
the need for full discussion of public affairs. We acknowledged that public purposes in the context of elections when the free exercise
4. The term "political advertisement" or "election propaganda" refers free speech includes the right to criticize the conduct of public men: thereof informs the people what the issues are, and who are
to any matter broadcasted, published, printed, displayed or exhibited, supporting what issues."218 At the heart of democracy is every
in any medium, which contain the name, image, logo, brand, insignia, advocate’s right to make known what the people need to
The interest of society and the maintenance of good government know,219 while the meaningful exercise of one’s right of suffrage
color motif, initials, and other symbol or graphic representation that is demand a full discussion of public affairs. Complete liberty to
capable of being associated with a candidate or party, and is intended includes the right of every voter to know what they need to know in
comment on the conduct of public men is a scalpel in the case of free order to make their choice.
to draw the attention of the public or a segment thereof to promote or speech. The sharp incision of its probe relieves the abscesses of
oppose, directly or indirectly, the election of the said candidate or official dom. Men in public life may suffer under a hostile and an
candidates to a public office. In broadcast media, political unjust accusation; the wound can be assuaged with the balm of a Thus, in Adiong v. COMELEC,220 this court discussed the importance
advertisements may take the form of spots, appearances on TV clear conscience. A public officer must not be too thin-skinned with of debate on public issues, and the freedom of expression especially
shows and radio programs, live or taped announcements, teasers, reference to comment upon his official acts. Only thus can the in relation to information that ensures the meaningful exercise of the
and other forms of advertising messages or announcements used by intelligence and dignity of the individual be exalted.206 right of suffrage:
commercial advertisers. Political advertising includes matters, not
falling within the scope of personal opinion, that appear on any We have adopted the principle that debate on public issues should be
Internet website, including, but not limited to, social networks, Subsequent jurisprudence developed the right to petition the
government for redress of grievances, allowing for criticism, save for uninhibited, robust, and wide open and that it may well include
blogging sites, and micro-blogging sites, in return for consideration, or vehement, caustic and sometimes unpleasantly sharp attacks on
otherwise capable of pecuniary estimation. (Emphasis supplied) 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, government and public officials. Too many restrictions will deny to
provided it is "specific and therefore constructive, reasoned or people the robust, uninhibited, and wide open debate, the generating
It is clear that this paragraph suggests that personal opinions are not tempered, and not a contemptuous condemnation of the entire of interest essential if our elections will truly be free, clean and
included, while sponsored messages are covered. government set-up."209 honest.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. The 1927 case of People v. Titular210 involved an alleged violation of We have also ruled that the preferred freedom of expression calls all
9615 states: the Election Law provision "penaliz[ing] the anonymous criticism of a the more for the utmost respect when what may be curtailed is the
candidate by means of posters or circulars."211 This court explained dissemination of information to make more meaningful the equally
SECTION 1. Definitions - As used in this Resolution: that it is the poster’s anonymous character that is being vital right of suffrage.221 (Emphasis supplied, citations omitted)
penalized.212 The ponente adds that he would "dislike very muchto
1. The term "election campaign" or "partisan political activity" refers to see this decision made the vehicle for the suppression of public Speech with political consequences isat the core of the freedom of
an act designed to promote the election or defeat of a particular opinion."213 expression and must be protected by this court.
candidate or candidates to a public office, and shall include any of the
following: In 1983, Reyes v. Bagatsing214 discussed the importance of allowing Justice Brion pointed out that freedomof expression "is not the god of
individuals to vent their views. According to this court, "[i]ts value may rights to which all other rights and even government protection of
.... lie in the fact that there may be something worth hearing from the state interest must bow."222
dissenter [and] [t]hat is to ensurea true ferment of ideas."215
The right to freedom of expression isindeed not absolute. Even some Content-based regulation bears a heavy presumption of invalidity, As early as 1907, United States v. Apurado240 recognized that "more
forms of protected speech are still subjectto some restrictions. The and this court has used the clear and present danger rule as or less disorder will mark the public assembly of the people to protest
degree of restriction may depend on whether the regulation is measure.228 Thus, in Chavez v. Gonzales: against grievances whether real or imaginary, because on such
content-based or content-neutral.223 Content-based regulations can occasions feeling is always wrought to a high pitch of
either be based on the viewpoint of the speaker or the subject of the A content-based regulation, however, bears a heavy presumption of excitement. . . ."241 It is with this backdrop that the state is justified in
expression. invalidity and is measured against the clear and present danger rule. imposing restrictions on incidental matters as time, place, and manner
The latter will pass constitutional muster only if justified by a of the speech.
II.B.6 compelling reason, and the restrictions imposedare neither overbroad
nor vague.229 (Citations omitted) In the landmark case of Reyes v. Bagatsing, this court summarized
Content-based regulation the steps that permit applicants must follow which include informing
Under this rule, "the evil consequences sought to be prevented must the licensing authority ahead of time as regards the date, public
be substantive, ‘extremely serious and the degree of imminence place, and time of the assembly.242 This would afford the public official
COMELEC contends that the order for removal of the tarpaulin is a time to inform applicants if there would be valid objections, provided
content-neutral regulation. The order was made simply because extremely high.’"230 "Only when the challenged act has overcome the
clear and present danger rule will it pass constitutional muster, with that the clear and present danger test is the standard used for his
petitioners failed to comply with the maximum size limitation for lawful decision and the applicants are given the opportunity to be
election propaganda.224 the government having the burden of overcoming the presumed
unconstitutionality."231 heard.243 This ruling was practically codified in Batas Pambansa No.
880, otherwise known as the Public Assembly Act of 1985.
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 Even with the clear and present danger test, respondents failed to
justify the regulation. There is no compelling and substantial state Subsequent jurisprudence have upheld Batas Pambansa No. 880 as
forms of speech such as commercial speech.225 "[A]ssuming a valid content-neutral regulation. In the 2006 case of Bayan v.
arguendo that the size restriction sought to be applied . . . is a mere interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason Ermita,244 this court discussed how Batas Pambansa No. 880 does
time, place, and manner regulation, it’s still unconstitutional for lack of not prohibit assemblies but simply regulates their time, place, and
a clear and reasonable nexus with a constitutionally sanctioned for the state to minimize the right of non-candidate petitioners to post
the tarpaulin in their private property. The size of the tarpaulin does manner.245 In 2010, this court found in Integrated Bar of the
objective."226 Philippines v. Atienza246 that respondent Mayor Atienza committed
not affect anyone else’s constitutional rights.
grave abuse of discretion when he modified the rally permit by
The regulation may reasonably be considered as either content- changing the venue from Mendiola Bridge to Plaza Miranda without
neutral or content-based.227 Regardless, the disposition of this case Content-based restraint or censorship refers to restrictions "based on first affording petitioners the opportunity to be heard.247
will be the same. Generally, compared with other forms of speech, the the subject matter of the utterance or speech."232 In contrast, content-
proposed speech is content-based. neutral regulation includes controls merely on the incidents of the
speech such as time, place, or manner of the speech.233 We reiterate that the regulation involved at bar is content-based. The
tarpaulin content is not easily divorced from the size of its medium.
As pointed out by petitioners, the interpretation of COMELEC
contained in the questioned order applies only to posters and This court has attempted to define "content-neutral" restraints starting
with the 1948 case of Primicias v. Fugoso.234 The ordinance in this II.B.7
tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, case was construed to grant the Mayor discretion only to determine
commercial speech. the public places that may be used for the procession ormeeting, but Justice Carpio and Justice Perlas-Bernabe suggest that the
not the power to refuse the issuance of a permit for such procession provisions imposing a size limit for tarpaulins are content-neutral
or meeting.235 This court explained that free speech and peaceful regulations as these "restrict the mannerby which speech is relayed
Worse, COMELEC does not point to a definite view of what kind of assembly are "not absolute for it may be so regulated that it shall not but not the content of what is conveyed."248
expression of non-candidates will be adjudged as "election beinjurious to the equal enjoyment of others having equal rights, nor
paraphernalia." There are no existing bright lines to categorize injurious to the rights of the community or society."236
speech as election-related and those that are not. This is especially If we apply the test for content-neutral regulation, the questioned acts
true when citizens will want to use their resources to be able to raise of COMELEC will not pass the three requirements for evaluating such
public issues that should be tackled by the candidates as what has The earlier case of Calalang v. Williams237 involved the National restraints on freedom of speech.249 "When the speech restraints take
happened in this case. COMELEC’s discretion to limit speech in this Traffic Commission resolution that prohibited the passing of animal- the form of a content-neutral regulation, only a substantial
case is fundamentally unbridled. drawn vehicles along certain roads at specific hours.238 This court governmental interest is required for its validity,"250 and it is subject
similarly discussed police power in that the assailed rules carry outthe only to the intermediate approach.251
legislative policy that "aims to promote safe transit upon and avoid
Size limitations during elections hit ata core part of expression. The obstructions on national roads, in the interest and convenience of the
content of the tarpaulin is not easily divorced from the size of its This intermediate approach is based on the test that we have
public."239 prescribed in several cases.252 A content-neutral government
medium.
regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it Respondents likewise cite the Constitution262 on their authority to The action of the COMELEC in thiscase is a strong deterrent to
furthers an important or substantial governmental interest; [3] if the recommend effective measures to minimize election spending. further speech by the electorate. Given the stature of petitioners and
governmental interest is unrelated to the suppression of free Specifically, Article IX-C, Section 2(7) provides: their message, there are indicators that this will cause a "chilling
expression; and [4] if the incident restriction on alleged [freedom of effect" on robust discussion during elections.
speech & expression] is no greater than is essential to the furtherance Sec. 2. The Commission on Elections shall exercise the following
of that interest.253 powers and functions: The form of expression is just as important as the message itself. In
the words of Marshall McLuhan, "the medium is the
On the first requisite, it is not within the constitutional powers of the .... message."266 McLuhan’s colleague and mentor Harold Innis has
COMELEC to regulate the tarpaulin. As discussed earlier, this is earlier asserted that "the materials on which words were written down
protected speech by petitioners who are non-candidates. On the have often counted for more than the words themselves."267
second requirement, not only must the governmental interest be (7) Recommend to the Congress effective measures to minimize
important or substantial, it must also be compelling as to justify the election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of III
restrictions made. Freedom of expression and equality
election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) This does not qualify as a compelling and
Compelling governmental interest would include constitutionally substantial government interest to justify regulation of the preferred III.A
declared principles. We have held, for example, that "the welfare of right to freedom of expression.
children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling government The possibility of abuse
interest in regulating . . . utterances in TV broadcast."255 The assailed issuances for the removal of the tarpaulin are based on
the two feet (2’) by three feet (3’) size limitation under Section 6(c) of Of course, candidates and political parties do solicit the help of private
COMELEC Resolution No. 9615. This resolution implements the Fair individuals for the endorsement of their electoral campaigns.
Respondent invokes its constitutional mandate to ensure equal Election Act that provides for the same size limitation.263
opportunity for public information campaigns among candidates in
connection with the holding of a free, orderly, honest, peaceful, and On the one extreme, this can take illicit forms such as when
credible election.256 This court held in Adiong v. COMELEC that "[c]ompared to the endorsement materials in the form of tarpaulins, posters, or media
paramount interest of the State in guaranteeing freedom of advertisements are made ostensibly by "friends" but in reality are
expression, any financial considerations behind the regulation are of really paid for by the candidate or political party. This skirts the
Justice Brion in his dissenting opinion discussed that "[s]ize limits to marginal significance."264 In fact, speech with political consequences,
posters are necessary to ensure equality of public information constitutional value that provides for equal opportunities for all
as in this case, should be encouraged and not curtailed. As candidates.
campaigns among candidates, as allowing posters with different sizes petitioners pointed out, the size limitation will not serve the objective
gives candidates and their supporters the incentive to post larger of minimizing election spending considering there is no limit on the
posters[,] [and] [t]his places candidates with more money and/or with number of tarpaulins that may be posted.265 However, as agreed by the parties during the oral arguments in this
deep-pocket supporters at an undue advantage against candidates case, this is not the situation that confronts us. In such cases, it will
with more humble financial capabilities."257 simply be a matter for investigation and proof of fraud on the part of
The third requisite is likewise lacking. We look not only at the the COMELEC.
legislative intent or motive in imposing the restriction, but more so at
First, Adiong v. COMELEC has held that this interest is "not as the effects of such restriction, if implemented. The restriction must not
important as the right of [a private citizen] to freely express his choice be narrowly tailored to achieve the purpose. It must be demonstrable. The guarantee of freedom of expression to individuals without any
and exercise his right of free speech."258 In any case, faced with both It must allow alternative avenues for the actor to make speech. relationship to any political candidate should not be held hostage by
rights to freedom of speech and equality, a prudent course would be the possibility of abuse by those seeking to be elected. It is true that
to "try to resolve the tension in a way that protects the right of there can be underhanded, covert, or illicit dealings so as to hide the
participation."259 In this case, the size regulation is not unrelated to the suppression of candidate’s real levels of expenditures. However, labelling all
speech. Limiting the maximum sizeof the tarpaulin would render expressions of private parties that tend to have an effect on the
ineffective petitioners’ message and violate their right to exercise debate in the elections as election paraphernalia would be too broad
Second, the pertinent election lawsrelated to private property only freedom of expression.
require that the private property owner’s consent be obtained when a remedy that can stifle genuine speech like in this case. Instead, to
posting election propaganda in the property.260 This is consistent with address this evil, better and more effective enforcement will be the
the fundamental right against deprivation of property without due The COMELEC’s act of requiring the removal of the tarpaulin has the least restrictive means to the fundamental freedom.
process of law.261 The present facts do not involve such posting of effect of dissuading expressions with political consequences. These
election propaganda absent consent from the property owner. Thus, should be encouraged, more so when exercised to make more On the other extreme, moved by the credentials and the message of
this regulation does not apply in this case. meaningful the equally important right to suffrage. a candidate, others will spend their own resources in order to lend
support for the campaigns. This may be without agreement between
The restriction in the present case does not pass even the lower test the speaker and the candidate or his or her political party. In lieu of
of intermediate scrutiny for content-neutral regulations. donating funds to the campaign, they will instead use their resources
directly in a way that the candidate or political party would have This court’s construction of the guarantee of freedom of expression The question of libertarian tolerance
doneso. This may effectively skirt the constitutional and statutory has always been wary of censorship or subsequent punishment that
limits of campaign spending. entails evaluation of the speaker’s viewpoint or the content of one’s This balance between equality and the ability to express so as to find
speech. This is especially true when the expression involved has one’s authentic self or to participate in the self determination of one’s
Again, this is not the situation in this case. political consequences. In this case, it hopes to affect the type of communities is not new only to law. It has always been a
deliberation that happens during elections. A becoming humility on philosophical problematique.
the part of any human institution no matter how endowed with the
The message of petitioners in thiscase will certainly not be what secular ability to decide legal controversies with finality entails that we
candidates and political parties will carry in their election posters or are not the keepers of all wisdom. In his seminal work, Repressive Tolerance, philosopher and social
media ads. The message of petitioner, taken as a whole, is an theorist Herbert Marcuse recognized how institutionalized inequality
advocacy of a social issue that it deeply believes. Through rhetorical exists as a background limitation, rendering freedoms exercised
devices, it communicates the desire of Diocese that the positions of Humanity’s lack of omniscience, even acting collectively, provides within such limitation as merely "protect[ing] the already established
those who run for a political position on this social issue be space for the weakest dissent. Tolerance has always been a machinery of discrimination."275 In his view, any improvement "in the
determinative of how the public will vote. It primarily advocates a libertarian virtue whose version is embedded in our Billof Rights. normal course of events" within an unequal society, without
stand on a social issue; only secondarily — even almost incidentally There are occasional heretics of yesterday that have become our subversion, only strengthens existing interests of those in power and
— will cause the election or non-election of a candidate. visionaries. Heterodoxies have always given us pause. The control.276
unforgiving but insistent nuance that the majority surely and
comfortably disregards provides us with the checks upon reality that
The twin tarpaulins consist of satire of political parties. Satire is a may soon evolve into creative solutions to grave social problems. This In other words, abstract guarantees of fundamental rights like
"literary form that employs such devices as sarcasm, irony and is the utilitarian version. It could also be that it is just part of human freedom of expression may become meaningless if not taken in a real
ridicule to deride prevailing vices or follies,"268 and this may target any necessity to evolve through being able to express or communicate. context. This tendency to tackle rights in the abstract compromises
individual or group in society, private and government alike. It seeks liberties. In his words:
to effectively communicate a greater purpose, often used for "political
and social criticism"269 "because it tears down facades, deflates However, the Constitution we interpret is not a theoretical document.
It contains other provisions which, taken together with the guarantee Liberty is self-determination, autonomy—this is almost a tautology,
stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly but a tautology which results from a whole series of synthetic
democratic than to have the high-and-mighty lampooned and of free expression, enhances each other’s value. Among these are
the provisions that acknowledge the idea of equality. In shaping judgments. It stipulates the ability to determine one’s own life: to be
spoofed."270 Northrop Frye, wellknown in this literary field, claimed able to determine what to do and what not to do, what to suffer and
that satire had two defining features: "one is wit or humor founded on doctrine construing these constitutional values, this court needs to
exercise extraordinary prudence and produce narrowly tailored what not. But the subject of this autonomy is never the contingent,
fantasy or a sense of the grotesque and absurd, the other is an object private individual as that which he actually is or happens to be; it is
of attack."271 Thus, satire frequently uses exaggeration, analogy, and 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, rather the individual as a human being who is capable of being free
other rhetorical devices. with the others. And the problem of making possible such a harmony
render them meaningless.
between every individual liberty and the other is not that of finding a
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a compromise between competitors, or between freedom and law,
list of dead individuals nor could the Archbishop of the Diocese of III.B. between general and individual interest, common and private welfare
Bacolod have intended it to mean that the entire plan of the in an established society, but of creating the society in which man is
candidates in his list was to cause death intentionally. The tarpaulin Speech and equality: no longer enslaved by institutions which vitiate self-determination
caricatures political parties and parodies the intention of those in the from the beginning. In other words, freedom is still to be created even
list. Furthermore, the list of "Team Patay" is juxtaposed with the list of Some considerations We first establish that there are two paradigms for the freest of the existing societies.277 (Emphasis in the original)
"Team Buhay" that further emphasizes the theme of its author: of free speech that separate at the point of giving priority to equality
Reproductive health is an important marker for the church of vis-à-vis liberty.272 Marcuse suggests that the democratic argument — with all opinions
petitioners to endorse. presented to and deliberated by the people — "implies a necessary
In an equality-based approach, "politically disadvantaged speech condition, namely, that the people must be capable of deliberating
The messages in the tarpaulins are different from the usual messages prevails over regulation[,] but regulation promoting political equality and choosing on the basis of knowledge, that they must have access
of candidates. Election paraphernalia from candidates and political prevails over speech."273 This view allows the government leeway to to authentic information, and that, on this basis, their evaluation must
parties are more declarative and descriptive and contain no redistribute or equalize ‘speaking power,’ such as protecting, even be the result of autonomous thought."278 He submits that "[d]ifferent
sophisticated literary allusion to any social objective. Thus, they implicitly subsidizing, unpopular or dissenting voices often opinions and ‘philosophies’ can no longer compete peacefully for
usually simply exhort the public to vote for a person with a brief systematically subdued within society’s ideological ladder.274 This adherence and persuasion on rational grounds: the ‘marketplace of
description of the attributes of the candidate. For example "Vote for view acknowledges that there are dominant political actors who, ideas’ is organized and delimited by those who determine the national
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba through authority, power, resources, identity, or status, have and the individual interest."279 A slant toward left manifests from his
kami sa Makati." capabilities that may drown out the messages of others. This is belief that "there is a ‘natural right’ of resistance for oppressed and
especially true in a developing or emerging economy that is part of overpowered minorities to use extralegal means if the legal ones have
the majoritarian world like ours. proved to be inadequate."280 Marcuse, thus, stands for an equality that
breaks away and transcends from established hierarchies, power explained that this provision only regulates the time and manner of libertarian suspicion on the use of viewpoint as well as content to
structures, and indoctrinations. The tolerance of libertarian society he advertising in order to ensure media equality among evaluate the constitutional validity or invalidity of speech.
refers to as "repressive tolerance." candidates.295 This court grounded this measure on constitutional
provisions mandating political equality:296 Article IX-C, Section 4 The textual basis of this view is that the constitutional provision uses
Legal scholars negative rather than affirmative language. It uses ‘speech’ as its
Section 4. The Commission may, during the election period, subject and not ‘speakers’.298 Consequently, the Constitution protects
The 20th century also bears witness to strong support from legal supervise or regulate the enjoyment or utilization of all franchises or free speech per se, indifferent to the types, status, or associations of
scholars for "stringent protections of expressive liberty,"281 especially permits for the operation of transportation and other public utilities, its speakers.299 Pursuant to this, "government must leave speakers
by political egalitarians. Considerations such as "expressive, media of communication or information, all grants, special privileges, and listeners in the private order to their own devices in sorting out
deliberative, and informational interests,"282 costs or the price of or concessions granted by the Government or any subdivision, the relative influence of speech."300
expression, and background facts, when taken together, produce agency, or instrumentality thereof, including any government-owned
bases for a system of stringent protections for expressive liberties.283 or controlled corporation or its subsidiary. Such supervision or Justice Romero’s dissenting opinion in Osmeña v. COMELEC
regulation shall aim to ensure equal opportunity, time, and space, and formulates this view that freedom of speech includes "not only the
the right to reply, including reasonable, equal rates therefor, for public right to express one’s views, but also other cognate rights relevant to
Many legal scholars discuss the interest and value of expressive information campaigns and forums among candidates in connection
liberties. Justice Brandeis proposed that "public discussion is a the free communication [of] ideas, not excluding the right to be
with the objective of holding free, orderly, honest, peaceful, and informed on matters of public concern."301 She adds:
political duty."284 Cass Sustein placed political speech on the upper credible elections. (Emphasis supplied)
tier of his twotier model for freedom of expression, thus, warranting
stringent protection.285 He defined political speech as "both intended And since so many imponderables may affect the outcome of
and received as a contribution to public deliberation about some Article XIII, Section 1 elections — qualifications of voters and candidates, education, means
issue."286 of transportation, health, public discussion, private animosities, the
Section 1. The Congress shall give highest priorityto the enactment of weather, the threshold of a voter’s resistance to pressure — the
But this is usually related also tofair access to opportunities for such measures that protect and enhance the right of all the people to utmost ventilation of opinion of men and issues, through assembly,
liberties.287 Fair access to opportunity is suggested to mean human dignity, reducesocial, economic, and political inequalities, and association and organizations, both by the candidate and the voter,
substantive equality and not mere formal equalitysince "favorable remove cultural inequities by equitably diffusing wealth and political becomes a sine qua non for elections to truly reflect the will of the
conditions for realizing the expressive interest will include some power for the common good. electorate.302 (Emphasis supplied)
assurance of the resources required for expression and some
guarantee that efforts to express views on matters of common To this end, the State shall regulate the acquisition, ownership, use, Justice Romero’s dissenting opinion cited an American case, if only to
concern will not be drowned out by the speech of betterendowed and disposition of property and its increments. (Emphasis supplied) emphasize free speech primacy such that"courts, as a rule are wary
citizens."288 Justice Brandeis’ solution is to "remedy the harms of to impose greater restrictions as to any attempt to curtail speeches
speech with more speech."289 This view moves away from playing Article II, Section 26 with political content,"303 thus:
down the danger as merely exaggerated, toward "tak[ing] the costs
seriously and embrac[ing] expression as the preferred strategy for the concept that the government may restrict the speech of some
addressing them."290 However, in some cases, the idea of more Section 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be defined elements in our society in order to enhance the relative voice of the
speech may not be enough. Professor Laurence Tribe observed the others is wholly foreign to the First Amendment which was designed
need for context and "the specification of substantive values before by law. (Emphasis supplied)
to "secure the widest possible dissemination of information from
[equality] has full meaning."291 Professor Catherine A. MacKinnon diverse and antagonistic sources" and "to assure unfettered
adds that "equality continues to be viewed in a formal rather than a Thus, in these cases, we have acknowledged the Constitution’s interchange of ideas for the bringing about of political and social
substantive sense."292 Thus, more speech can only mean more guarantee for more substantive expressive freedoms that take changes desired by the people."304
speech from the few who are dominant rather than those who are not. equality of opportunities into consideration during elections.
This echoes Justice Oliver Wendell Holmes’ submission "that the
Our jurisprudence The other view market place of ideas is still the best alternative to censorship."305

This court has tackled these issues. However, there is also the other view. This is that considerations of Parenthetically and just to provide the whole detail of the argument,
equality of opportunity or equality inthe ability of citizens as speakers the majority of the US Supreme Court in the campaign expenditures
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on should not have a bearing in free speech doctrine. Under this view, case of Buckley v. Valeo "condemned restrictions (even if content-
the validity of Section 11(b) ofthe Electoral Reforms Law of "members of the public are trusted to make their own individual neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the
1987.293 This section "prohibits mass media from selling or giving free evaluations of speech, and government is forbidden to intervene for relative voice of others’ and thereby ‘equaliz[ing] access to the
of charge print space or air time for campaign or other political paternalistic or redistributive reasons . . . [thus,] ideas are best left to political arena."306 The majority did not use the equality-based
purposes, except to the Commission on Elections."294 This court a freely competitive ideological market."297 This is consistent with the paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the However, the requirements of the Constitution regarding equality in public and, hence, would render speech meaningless. It will amount
amount which a person can speak, which takes out of his exclusive opportunity must provide limits to some expression during electoral to the abridgement of speech with political consequences.
judgment the decision of when enough is enough, deprives him of his campaigns.
free speech."307 IV
Thus clearly, regulation of speech in the context of electoral Right to property
Another flaw is how "[a]ny quantitative limitation on political campaigns made by candidates or the members of their political
campaigning inherently constricts the sum of public information and parties or their political parties may be regulated as to time, place, Other than the right to freedom of expression311 and the meaningful
runs counter to our ‘profound national commitment that debate on and manner. This is the effect of our rulings in Osmeña v. COMELEC exercise of the right to suffrage,312 the present case also involves
public issues should be uninhibited, robust, and wide-open.’"308 and National Press Club v. COMELEC. one’s right to property.313

In fact, "[c]onstraining those who have funds or have been able to Regulation of speech in the context of electoral campaigns made by Respondents argue that it is the right of the state to prevent the
raise funds does not ease the plight of those without funds in the first persons who are not candidates or who do not speak as members of circumvention of regulations relating to election propaganda by
place . . . [and] even if one’s main concern isslowing the increase in a political party which are, taken as a whole, principally advocacies of applying such regulations to private individuals.314 Certainly, any
political costs, it may be more effective torely on market forces a social issue that the public must consider during elections is provision or regulation can be circumvented. But we are not
toachieve that result than on active legal intervention."309 According to unconstitutional. Such regulation is inconsistent with the guarantee of confronted with this possibility. Respondents agree that the tarpaulin
Herbert Alexander, "[t]o oppose limitations is not necessarily to argue according the fullest possible range of opinions coming from the in question belongs to petitioners. Respondents have also agreed,
that the sky’s the limit [because in] any campaign there are saturation electorate including those that can catalyze candid, uninhibited, and during the oral arguments, that petitioners were neither commissioned
levels and a point where spending no longer pays off in votes per robust debate in the criteria for the choice of a candidate. nor paid by any candidate or political party to post the material on
dollar."310 their walls.
This does not mean that there cannot be a specie of speech by a
III. C. private citizen which will not amount toan election paraphernalia to be Even though the tarpaulin is readily seen by the public, the tarpaulin
validly regulated by law. remains the private property of petitioners. Their right to use their
When private speech amounts property is likewise protected by the Constitution.
Regulation of election paraphernalia will still be constitutionally valid if
to election paraphernalia it reaches into speech of persons who are not candidates or who do In Philippine Communications Satellite Corporation v. Alcuaz:315
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,
The scope of the guarantee of free expression takes into has for its principal object the endorsement of a candidate only. The Any regulation, therefore, which operates as an effective confiscation
consideration the constitutional respect for human potentiality and the regulation (a) should be provided by law, (b) reasonable, (c) narrowly of private property or constitutes an arbitrary or unreasonable
effect of speech. It valorizes the ability of human beings to express tailored to meet the objective of enhancing the opportunity of all infringement of property rights is void, because it is repugnant to the
and their necessity to relate. On the other hand, a complete candidates to be heard and considering the primacy of the guarantee constitutional guaranties of due process and equal protection of the
guarantee must also take into consideration the effects it will have in of free expression, and (d) demonstrably the least restrictive means to laws.316 (Citation omitted)
a deliberative democracy. Skewed distribution of resources as well as achieve that object. The regulation must only be with respect to the
the cultural hegemony of the majority may have the effect of drowning time, place, and manner of the rendition of the message. In no This court in Adiong held that a restriction that regulates where decals
out the speech and the messages of those in the minority. In a sense, situation may the speech be prohibited or censored onthe basis of its and stickers should be posted is "so broad that it encompasses even
social inequality does have its effect on the exercise and effect of the content. For this purpose, it will notmatter whether the speech is the citizen’s private property."317 Consequently, it violates Article III,
guarantee of free speech. Those who have more will have better made with or on private property. Section 1 of the Constitution which provides thatno person shall be
access to media that reaches a wider audience than those who have deprived of his property without due process of law. This court
less. Those who espouse the more popular ideas will have better explained:
reception than the subversive and the dissenters of society.To be This is not the situation, however, in this case for two reasons. First,
really heard and understood, the marginalized view normally as discussed, the principal message in the twin tarpaulins of
undergoes its own degree of struggle. petitioners consists of a social advocacy. 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
Second, as pointed out in the concurring opinion of Justice Antonio 14th Amendment, protects these essential attributes.
The traditional view has been to tolerate the viewpoint of the speaker
and the content of his or her expression. This view, thus, restricts Carpio, the present law — Section 3.3 of Republic Act No. 9006 and
laws or regulation that allows public officials to make judgments of the Section 6(c) of COMELEC Resolution No. 9615 — if applied to this Property is more than the mere thing which a person owns. It is
value of such viewpoint or message content. This should still be the case, will not pass the test of reasonability. A fixed size for election elementary that it includes the right to acquire, use, and dispose of it.
principal approach. posters or tarpaulins without any relation to the distance from the The Constitution protects these essential attributes of property.
intended average audience will be arbitrary. At certain distances, Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct.
posters measuring 2 by 3 feet could no longer be read by the general 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 We proceed to the last issues pertaining to whether the COMELEC in Witnesses from participating in the flag ceremony "out of respect for
US 60 [1917])318 issuing the questioned notice and letter violated the right of petitioners their religious beliefs, [no matter how] "bizarre" those beliefsmay
to the free exercise of their religion. seem to others."328 This court found a balance between the assertion
This court ruled that the regulation in Adiong violates private property of a religious practice and the compelling necessities of a secular
rights: At the outset, the Constitution mandates the separation of church and command. It was an early attempt at accommodation of religious
state.320 This takes many forms. Article III, Section 5 of the beliefs.
The right to property may be subject to a greater degree of regulation Constitution, for instance provides:
but when this right is joined by a "liberty" interest, the burden of In Estrada v. Escritor,329 this court adopted a policy of benevolent
justification on the part of the Government must be exceptionally Section 5. No law shall be made respecting an establishment of neutrality:
convincing and irrefutable. The burden is not met in this case. religion, or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination With religion looked upon with benevolence and not hostility,
Section 11 of Rep. Act 6646 is so encompassing and invasive that it or preference, shall forever be allowed. Noreligious test shall be benevolent neutrality allows accommodation of religion under certain
prohibits the posting or display of election propaganda in any place, required for the exercise of civil or political rights. circumstances. Accommodations are government policies that take
whether public or private, except inthe common poster areas religion specifically intoaccount not to promote the government’s
sanctioned by COMELEC. This means that a private person cannot There are two aspects of this provision.321 The first is the none favored form of religion, but to allow individuals and groups to
post his own crudely prepared personal poster on his own front stablishment clause.322 Second is the free exercise and enjoyment of exercise their religion without hindrance. Their purpose or effect
dooror on a post in his yard. While the COMELEC will certainly never religious profession and worship.323 therefore is to remove a burden on, or facilitate the exercise of, a
require the absurd, there are no limits to what overzealous and person’s or institution’s religion. As Justice Brennan explained, the
partisan police officers, armed with a copy of the statute or regulation, "government [may] take religion into account . . . to exempt, when
The second aspect is atissue in this case. possible, from generally applicable governmental regulation
may do.319 Respondents ordered petitioners, who are private citizens,
to remove the tarpaulin from their own property. The absurdity of the individuals whose religious beliefs and practices would otherwise
situation is in itself an indication of the unconstitutionality of Clearly, not all acts done by those who are priests, bishops, ustadz, thereby be infringed, or to create without state involvement an
COMELEC’s interpretation of its powers. imams, or any other religious make such act immune from any atmosphere in which voluntary religious exercise may flourish."330
secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law. This court also discussed the Lemon test in that case, such that a
Freedom of expression can be intimately related with the right to
property. There may be no expression when there is no place where regulation is constitutional when: (1) it has a secular legislative
the expression may be made. COMELEC’s infringement upon The Bishop of Bacolod caused the posting of the tarpaulin. But not all purpose; (2) it neither advances nor inhibits religion; and (3) it does
petitioners’ property rights as in the present case also reaches out to acts of a bishop amounts to religious expression. This not foster an excessive entanglement with religion.331
infringement on their fundamental right to speech. notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is As aptly argued by COMELEC, however, the tarpaulin, on its face,
inextricably connected to its Catholic dogma, faith, and moral "does not convey any religious doctrine of the Catholic
Respondents have not demonstrated thatthe present state interest teachings. . . ."325
they seek to promote justifies the intrusion into petitioners’ property church."332 That the position of the Catholic church appears to
rights. Election laws and regulations must be reasonable. It must also coincide with the message of the tarpaulin regarding the RH Law
acknowledge a private individual’s right to exercise property rights. The difficulty that often presents itself in these cases stems from the does not, by itself, bring the expression within the ambit of religious
Otherwise, the due process clause will be violated. reality that every act can be motivated by moral, ethical, and religious speech. On the contrary, the tarpaulin clearly refers to candidates
considerations. In terms of their effect on the corporeal world, these classified under "Team Patay" and "Team Buhay" according to their
acts range from belief, to expressions of these faiths, to religious respective votes on the RH Law.
COMELEC Resolution No. 9615 and the Fair Election Act intend to ceremonies, and then to acts of a secular character that may, from
prevent the posting of election propaganda in private property without the point of view of others who do not share the same faith or may not
the consent of the owners of such private property. COMELEC has The same may be said of petitioners’ reliance on papal encyclicals to
subscribe to any religion, may not have any religious bearing. support their claim that the expression onthe tarpaulin is an
incorrectly implemented these regulations. Consistent with our ruling
in Adiong, we find that the act of respondents in seeking to restrain ecclesiastical matter. With all due respect to the Catholic faithful, the
petitioners from posting the tarpaulin in their own private property is Definitely, the characterizations ofthe religious of their acts are not church doctrines relied upon by petitioners are not binding upon this
an impermissible encroachments on the right to property. conclusive on this court. Certainly, our powers of adjudication cannot court. The position of the Catholic religion in the Philippines as
be blinded by bare claims that acts are religious in nature. 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.
V The enumeration of candidates on the face of the tarpaulin precludes
Tarpaulin and its message are not religious speech Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court any doubtas to its nature as speech with political consequences and
"emphatically" held that the adherents ofa particular religion shall be not religious speech.
the ones to determine whether a particular matter shall be considered
ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s
Furthermore, the definition of an "ecclesiastical affair" in Austria v. Freedom for the thought we can disagree with can be wielded not
National Labor Relations Commission333 cited by petitioners finds no only by those in the minority. This can often be expressed by
application in the present case. The posting of the tarpaulin does not dominant institutions, even religious ones. That they made their point
fall within the category of matters that are beyond the jurisdiction of dramatically and in a large way does not necessarily mean that their
civil courts as enumerated in the Austriacase such as "proceedings statements are true, or that they have basis, or that they have been
for excommunication, ordinations of religious ministers, administration expressed in good taste.
of sacraments and other activities withattached religious
significance."334 Embedded in the tarpaulin, however, are opinions expressed by
petitioners. It is a specie of expression protected by our fundamental
A FINAL NOTE law. It is an expression designed to invite attention, cause debate,
and hopefully, persuade. It may be motivated by the interpretation of
We maintain sympathies for the COMELEC in attempting to do what it petitioners of their ecclesiastical duty, but their parishioner’s actions
thought was its duty in this case. However, it was misdirected. will have very real secular consequences. Certainly, provocative
messages do matter for the elections.
COMELEC’s general role includes a mandate to ensure equal
opportunities and reduce spending among candidates and their What is involved in this case is the most sacred of speech forms:
registered political parties. It is not to regulate or limit the speech of expression by the electorate that tends to rouse the public to debate
the electorate as it strives to participate inthe electoral exercise. contemporary issues. This is not speechby 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
The tarpaulin in question may be viewed as producing a caricature of content of the right to suffrage.
those who are running for public office.Their message may be
construed generalizations of very complex individuals and party-list
organizations. 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
They are classified into black and white: as belonging to "Team petitioners deserves our protection.
Patay" or "Team Buhay."
WHEREFORE, the instant petition is GRANTED. The temporary
But this caricature, though not agreeable to some, is still protected restraining order previously issued is hereby made permanent. The
speech. act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared
That petitioners chose to categorize them as purveyors of death or of unconstitutional.
life on the basis of a single issue — and a complex piece of legislation
at that — can easily be interpreted as anattempt to stereo type the SO ORDERED.
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 non-judgmental. Some may have
expected that the authors would give more space to practice
forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an