Diocese of Bacolod v Comelec

7/26/2019 Diocese of Bacolod v Comelec

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 205728 January 21, 2015

THE DIOCESE OF !CO"OD, REPRESENTED # THE MOST RE$. ISHOP $ICENTE M.N!$!RR! an% THE ISHOP HIMSE"F IN HIS PERSON!" C!P!CIT#, Petitioners,vs.COMMISSION ON E"ECTIONS !ND THE E"ECTION OFFICER OF !CO"OD CIT#, !TT#.M!$I" $. M!J!RUCON, Respondents.

D E C I S I N

"EONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and allgovernment authority emanates from them." – Article II, Section 1, onstitution

All !overn"ental authorit# e"anates fro" our people. No unreasonable restrictions of thefunda"ental and preferred ri!ht to e$pression of the electorate durin! political contests no "atterho% see"in!l# beni!n %ill be tolerated.

&his case defines the e$tent that our people "a# shape the debates durin! elections. It is si!nificantand of first i"pression. 'e are as(ed to decide %hether the Co""ission on Elections )CME*EC+has the co"petence to li"it e$pressions "ade b# the citiens - %ho are not candidates - durin!elections.

Before us is a special civil action for certiorari and prohibition %ith application for preli"inar#inunction and te"porar# restrainin! order / under Rule 01 of the Rules of Court see(in! to nullif#CME*EC2s Notice to Re"ove Ca"pai!n Materials3 dated 4ebruar# 33, 35/6 and letter 6 issued on4ebruar# 37, 35/6.

&he facts are not disputed.

n 4ebruar# 3/, 35/6, petitioners posted t%o )3+ tarpaulins %ithin a private co"pound housin! theSan Sebastian Cathedral of Bacolod. Each tarpaulin %as appro$i"atel# si$ feet )08+ b# ten feet )/58+in sie. &he# %ere posted on the front %alls of the cathedral %ithin public vie%. &he first tarpaulincontains the "essa!e 9IBAS:RA R; *a%9 referrin! to the Reproductive ;ealth *a% of 35/3 or

Republic Act No. /561<. &he second tarpaulin is the subect of the present case.<

&his tarpaulincontains the headin! 9Conscience =ote9 and lists candidates as either 9)Anti>R;+ &ea" Buha#9 %itha chec( "ar(, or 9)Pro>R;+ &ea" Pata#9 %ith an 9?9 "ar(.1 &he electoral candidates %ere classifiedaccordin! to their vote on the adoption of Republic Act No. /561<, other%ise (no%n as the R;*a%.0&hose %ho voted for the passin! of the la% %ere classified b# petitioners as co"prisin! 9&ea"Pata#,9 %hile those %ho voted a!ainst it for" 9&ea" Buha#9@7

&EAM B:;A &EAM PA&A

http://www.lawphil.net/judjuris/juri2015/jan2015/gr_205728_2015.html#fnt1



















Estrada, = An!ara, uan Ed!ardo

;onasan, re!orio Casio, &edd#

Ma!sa#sa#, Mitos Ca#etano, Alan Peter

Pi"entel, o(o Enrile, ac(ie

&rillanes, Antonio Escudero, 4rancis

=illar, C#nthia ;ontiveros, Risa

Part# *ist Buha# *e!arda, *oren

Part# *ist An! Pa"il#a Part# *ist abriela

Part# *ist A(ba#an

Part# *ist Ba#an Muna

Part# *ist Ana( Pa%is

Durin! oral ar!u"ents, respondents conceded that the tarpaulin %as neither sponsored nor paid forb# an# candidate. Petitioners also conceded that the tarpaulin contains na"es ofcandidates for the35/6 elections, but not of politicians %ho helped in the passa!e of the R; *a% but %ere notcandidates for that election.

n 4ebruar# 33, 35/6, respondent Att#. Mavil =. Maarucon, in her capacit# as Election fficer ofBacolod Cit#, issued a Notice to Re"ove Ca"pai!n MaterialsF addressed to petitioner Most Rev.Bishop =icente M. Navarra. &he election officer ordered the tarpaulin2s re"oval %ithin three )6+ da#sfro" receipt for bein! oversied. CME*EC Resolution No. G0/1 provides for the sie reHuire"entof t%o feet )32+ b# three feet )62+.G

n 4ebruar# 31, 35/6, petitioners replied/5 reHuestin!, a"on! others, that )/+ petitioner Bishop be

!iven a definite rulin! b# CME*EC *a% Depart"ent re!ardin! the tarpaulin and )3+ pendin! thisopinion and the avail"ent of le!al re"edies, the tarpaulin be allo%ed to re"ain.//

n 4ebruar# 37, 35/6, CME*EC *a% Depart"ent issued a letter /3 orderin! the i""ediate re"ovalof the tarpaulin other%ise, it %ill be constrained to file an election offense a!ainst petitioners. &heletter of CME*EC *a% Depart"ent %as silenton the re"edies available to petitioners. &he letterprovides as follo%s@

Dear Bishop Navarra@

It has reached this ffice that our Election fficer for this Cit#, Att#. Mavil Maarucon, had alread#!iven #ou notice on 4ebruar# 33, 35/6 as re!ards the election propa!anda "aterial posted on the

church vicinit# pro"otin! for or a!ainst the candidates and part#>list !roups %ith the follo%in! na"esand "essa!es, particularl# described as follo%s@

Material sie @ si$ feet )02+ b# ten feet )/52+

Description @ 4:** C*R &ARPA:*IN

I"a!e of @ SEE A&&AC;ED PIC&:RES














Messa!e @ CNSCIENCE =&E )AN&I R;+ &EAM

B:;A )PR R;+ &EAM PA&A

*ocation @ PS&ED N &;E C;:RC; =ICINI&4 &;E DICESE 4 BAC*D CI&

&he three )6+ J da# notice e$pired on 4ebruar# 31, 35/6.

Considerin! that the above>"entioned "aterial is found to be in violation of Co"elec Resolution No.G0/1 pro"ul!ated on anuar# /1, 35/6 particularl# on the sie )even %ith the subseHuent division of the said tarpaulin into t%o+, as the la%ful sie for election propa!anda "aterial is onl# t%o feet )32+ b#three feet )62+, please orderKcause the i""ediate re"oval of said election propa!anda "aterial,other%ise, %e shall be constrained to file an election offense case a!ainst #ou.

'e pra# that the Catholic Church %ill be the first institution to help the Co""ission on Electionsinensurin! the conduct of peaceful, orderl#, honest and credible elections.

&han( #ou and od BlessL

si!ned A&&. ESMERA*DA AMRA>*ADRADirector I=/6

Concerned about the i""inent threatof prosecution for their e$ercise of free speech, petitionersinitiated this case throu!h this petition for certiorari and prohibition %ith application for preli"inar#inunction and te"porar# restrainin! order./< &he# Huestion respondents2 notice dated 4ebruar# 33,35/6 and letter issued on 4ebruar# 37, 35/6. &he# pra# that@ )/+ the petition be !iven due course)3+ a te"porar# restrainin! order )&R+ andKor a %rit of preli"inar# inunction be issued restrainin!respondents fro" further proceedin! in enforcin! their orders for the re"oval of the &ea" Pata#

tarpaulin and )6+ after notice and hearin!, a decision be rendered declarin! the Huestioned orders of respondents as unconstitutional and void, and per"anentl# restrainin! respondents fro" enforcin!the" or an# other si"ilar order ./1

After due deliberation, this court, on March 1, 35/6, issued a te"porar# restrainin! order enoinin!respondents fro" enforcin! the assailed notice and letter, and set oral ar!u"ents on March /G,35/6./0

n March /6, 35/6, respondents filed their co""ent/7 ar!uin! that )/+ a petition for certiorari andprohibition under Rule 01 of the Rules of Court filed before this court is not the proper re"ed# toHuestion the notice and letter of respondents and )3+ the tarpaulin is an election propa!anda subectto re!ulation b# CME*EC pursuant to its "andate under Article I?>C, Section < of the Constitution.

;ence, respondents clai" that the issuances orderin! its re"oval for bein! oversied are valid andconstitutional./F

Durin! the hearin! held on March /G, 35/6, the parties %ere directed to file their respective"e"oranda %ithin /5 da#s or b# April /, 35/6, ta(in! into consideration the intervenin! holida#s. /G

&he issues, %hich also served as !uide for the oral ar!u"ents, are@ 35

I.





















';E&;ER &;E 33 4EBR:AR 35/6 N&ICEKRDER B E*EC&IN 44ICER MAAR:CN AND &;E 37 4EBR:AR 35/6 RDER B &;E CME*EC *A' DEPAR&MEN& ARECNSIDERED :DMEN&SK4INA* RDERSKRES*:&INS 4 &;E CME*EC ';IC;':*D 'ARRAN& A RE=IE' 4 &;IS C:R& =IA R:*E 01 PE&I&IN

A. ';E&;ER PE&I&INERS =I*A&ED &;E ;IERARC; 4 C:R&S

DC&RINE AND :RISPR:DEN&IA* R:*ES =ERNIN APPEA*S 4RMCME*EC DECISINS

B. ASS:MIN AR:END &;A& &;E A4REMEN&INED RDERS ARE N&CNSIDERED :DMEN&SK4INA* RDERSKRES*:&INS 4 &;E CME*EC,';E&;ER &;ERE ARE E?CEP&INA* CIRC:MS&ANCES ';IC; ':*D

A**' &;IS C:R& & &AE CNIOANCE 4 &;E CASE

II.

';E&;ER I& IS RE*E=AN& &DE&ERMINE ';E&;ER &;E &ARPA:*INS ARE 9P*I&ICA* AD=ER&ISEMEN&9 R 9E*EC&IN PRPAANDA9 CNSIDERIN &;A& PE&I&INER IS N&

A P*I&ICA* CANDIDA&E

III.

';E&;ER &;E &ARPA:*INS ARE A 4RM R E?PRESSIN )PR&EC&ED SPEEC;+, RE*EC&IN PRPAANDAKP*I&ICA* AD=ER&ISEMEN&

A. ASS:MIN AR:END &;A& &;E &ARPA:*INS ARE A 4RM 4E?PRESSIN, ';E&;ER &;E CME*EC PSSESSES &;E A:&;RI& &RE:*A&E &;E SAME

B. ';E&;ER &;IS 4RM 4 E?PRESSIN MA BE RE:*A&ED

I=.

';E&;ER &;E 33 4EBR:AR 35/6 N&ICEK RDER B E*EC&IN 44ICER MAAR:CN AND &;E 37 4EBR:AR 35/6 RDER B &;E CME*EC *A' DEPAR&MEN& =I*A&ES &;EPRINCIP*E 4 SEPARA&IN 4 C;:RC; AND S&A&E AND

=.

';E&;ER &;E AC&IN 4 &;E PE&I&INERS IN PS&IN I&S &ARPA:*IN =I*A&ES &;ECNS&I&:&INA* PRINCIP*E 4 SEPARA&IN 4 C;:RC; AND S&A&E.

IPRCED:RA* ISS:ES

I.A

&his court2s urisdiction over CME*EC cases



Respondents as( that this petition be dis"issed on the !round that the notice and letter are not finalorders, decisions, rulin!s, or ud!"ents of the CME*EC En Banc issued in the e$ercise of itsadudicator# po%ers, revie%able via Rule 0< of the Rules of Court. 3/

Rule 0< is not the e$clusive re"ed# for all acts of the CME*EC. Rule 01 is applicable especiall# toraise obections relatin! to a !rave abuse of discretion resultin! in the ouster of urisdiction.33 As a

special civil action, there "ust also be a sho%in! that there be no plain, speed#, and adeHuatere"ed# in the ordinar# course of the la%.

Respondents contend that the assailed notice and letter are not subect to revie% b# this court,%hose po%er to revie% is 9li"ited onl# to final decisions, rulin!s and orders of the CME*EC EnBanc rendered in the e$ercise of its adudicator# or Huasi>udicial po%er.936 Instead, respondentsclai" that the assailed notice and letter are revie%able onl# b# CME*EC itself pursuant to ArticleI?>C, Section 3)6+ of the Constitution3< on CME*EC2s po%er to decide all Huestions affectin!elections.31 Respondents invo(e the cases of A"bil, r. v. CME*EC, 30Repol v. CME*EC,37 Soriano,r. v. CME*EC,3F Blanco v. CME*EC,3G and Ca#etano v. CME*EC,65 to illustrate ho%

udicialintervention is li"ited to final decisions, orders, rulin!s and ud!"ents of the CME*EC EnBanc.6/

&hese cases are not applicable.

In A"bil, r. v. CME*EC, the losin! part# in the !ubernatorial race of Eastern Sa"ar filed theelection protest.63 At issue %as the validit# of the pro"ul!ation of a CME*EC Divisionresolution.66 No "otion for reconsideration %as filed to raise this issue before the CME*EC EnBanc. &his court declared that it did not have urisdiction and clarified@

'e have interpreted Section 7, Article I?>A of the Constitution6< to "ean final orders, rulin!s anddecisionsof the CME*EC rendered in the e$ercise of its adudicator# or Huasi>udicial po%ers.9 &hisdecision "ust be a final decision or resolution of the Co"elec en banc, not of a division, certainl# notan interlocutor# order of a division.&he Supre"e Court has no po%er to revie% viacertiorari, aninterlocutor# order or even a final resolution of a Division of the Co""ission onElections.61 )E"phasis in the ori!inal, citations o"itted+

;o%ever, in the ne$t case cited b# respondents, Repol v. CME*EC, this court provided e$ceptionsto this !eneral rule. Repol%as another election protest case, involvin! the "a#oralt# elections inPa!san!han, Sa"ar.60&his ti"e, the case %as brou!ht to this court because the CME*EC 4irstDivision issued a status Huo ante order a!ainst the Re!ional &rial Court e$ecutin! its decisionpendin! appeal.67 &his court2s ponencia discussed the !eneral rule enunciated in A"bil, r. that itcannot ta(e urisdiction to revie% interlocutor# orders of a CME*EC Division.6F ;o%ever, consistent%ith ABS>CBN Broadcastin! Corporation v. CME*EC,6G it clarified the e$ception@

&his Court, ho%ever, has ruled in the past that this procedural reHuire"ent of filin! a "otion forreconsideration "a# be !lossed over to prevent "iscarria!e of ustice, %hen the issue involves the

principle of social ustice or the protection of labor, %hen the decision or resolution sou!ht to be setaside is a nullit#, or %hen the need for relief is e$tre"el# ur!ent and certiorari is the onl# adeHuateand speed# re"ed# available.<5

Based on ABS>CBN, this court could revie% orders and decisions of CME*EC - in electoralcontests - despite not bein! revie%ed b# the CME*EC En Banc, if@

/+ It %ill prevent the "iscarria!e of ustice





















































3+ &he issue involves a principle of social ustice

6+ &he issue involves the protection of labor

<+ &he decision or resolution sou!ht tobe set aside is a nullit# or

1+ &he need for relief is e$tre"el# ur!ent and certiorari is the onl# adeHuate and speed#re"ed# available.

:lti"atel#, this court too( urisdiction in Repoland decided that the status Huo anteorder issued b#the CME*EC Division %as unconstitutional.

Respondents also cite Soriano, r. v. CME*EC.&his case %as also an election protest caseinvolvin! candidates for the cit# council of Muntinlupa Cit#.</ Petitioners in Soriano, r.filed before thiscourt a petition for certiorari a!ainst an interlocutor# order of the CME*EC 4irst

Division.<3 'hile the petition %as pendin! in this court, the CME*EC 4irst Division dis"issed the"ain election protest case.<6 Sorianoapplied the !eneral rule that onl# final orders should be

Huestioned %ith this court. &he ponencia for this court, ho%ever, ac(no%led!ed the e$ceptions to the!eneral rule in ABS>CBN.<<

Blanco v. CME*EC, another case cited b# respondents, %as a disHualification case of one of the"a#oralt# candidates of Me#caua#an, Bulacan.<1 &he CME*EC Second Division ruled thatpetitioner could not Hualif# for the 3557 elections due to the findin!s in an ad"inistrative case that heen!a!ed in vote bu#in! in the /GG1 elections.<0 No "otion for reconsideration %as filed before theCME*EC En Banc. &his court, ho%ever, too( co!niance of this case appl#in! one of thee$ceptions in ABS>CBN@ &he assailed resolution %as a nullit#.<7

4inall#, respondents cited Ca#etano v. CME*EC, a recent election protest case involvin! the"a#oralt# candidates of &a!ui! Cit#.<F Petitioner assailed a resolution of the CME*EC den#in! her

"otion for reconsideration to dis"iss the election protest petition for lac( of for" andsubstance.<G &his court clarified the !eneral rule and refused to ta(e co!niance of the revie% of theCME*EC order. 'hile reco!niin! the e$ceptions in ABS>CBN, this court ruled that thesee$ceptions did not appl#.15

A"bil, r., Repol, Soriano, r., Blanco, and Ca#etano cited b# respondents do not operate asprecedents to oust this court fro" ta(in! urisdiction over this case. All these cases cited involveelection protests or disHualification cases filed b# the losin! candidate a!ainst the %innin! candidate.

In the present case, petitioners are not candidates see(in! for public office. &heir petition is filed toassert their funda"ental ri!ht to e$pression.

4urther"ore, all these cases cited b# respondents pertained to CME*EC2s e$ercise of itsadudicator# or Huasi>udicial po%er. &his case pertains to acts of CME*EC in the i"ple"entationof its re!ulator# po%ers. 'hen it issued the notice and letter, the CME*EC %as alle!edl#enforcin!election la%s.

I.B

Rule 01, !rave abuse of discretion,





























and li"itations on political speech

&he "ain subect of thiscase is an alle!ed constitutional violation@ the infrin!e"ent on speech andthe 9chillin! effect9 caused b# respondent CME*EC2s notice and letter.

Petitioners alle!e that respondents co""itted !rave abuse of discretion a"ountin! to lac( or e$cess

of urisdiction in issuin! the notice1/ dated 4ebruar# 33,35/6 and letter 13 dated 4ebruar# 37, 35/6orderin! the re"oval of the tarpaulin. 16 It is their position that these infrin!e on their funda"ental ri!htto freedo" of e$pression and violate the principle of separation of church and state and, thus, areunconstitutional.1<

&he urisdiction of this court over the subect "atter is deter"ined fro" the alle!ations in the petition.Subect "atter urisdiction is defined as the authorit# 9to hear and deter"ine cases of the !eneralclass to %hich the proceedin!s in Huestion belon! and is conferred b# the soverei!n authorit# %hichor!anies the court and defines its po%ers.9 11 Definitel#, the subect "atter in this case is differentfro" the cases cited b# respondents.

Nothin! less than the electorate2s political speech %ill be affected b# the restrictions i"posed b#

CME*EC. Political speech is "otivated b# the desire to be heard and understood, to "ove peopleto action. It is concerned %ith the soverei!n ri!ht to chan!e the contours of po%er %hether throu!hthe election of representatives in a republican !overn"ent or the revision of the basic te$t of theConstitution. &he eal %ith %hich %e protect this (ind of speech does not depend on our evaluationof the co!enc# of the "essa!e. Neither do %e assess %hether %e should protect speech based onthe "otives of CME*EC. 'e evaluate restrictions on freedo" of e$pression fro" their effects. 'eprotect both speech and "ediu" because the Hualit# of this freedo" in practice %ill define theHualit# of deliberation in our de"ocratic societ#.

CME*EC2s notice and letter affect preferred speech. Respondents2 acts are capable of repetition.:nder the conditions in %hich it %as issued and in vie% of the novelt# of this case,it could result in a9chillin! effect9 that %ould affect other citiens %ho %ant their voices heard on issues durin! theelections. ther citiens %ho %ish to e$press their vie%s re!ardin! the election and other relatedissues "a# choose not to, for fear of reprisal or sanction b# the CME*EC. Direct resort to this courtis allo%ed to avoid such proscribed conditions. Rule 01 is also the procedural platfor" for raisin!!rave abuse of discretion.

Both parties point to constitutional provisions on urisdiction. 4or petitioners, it referred to this court2se$panded e$ercise of certiorari as provided b# the Constitution as follo%s@

udicial po%er includes the dut# of the courts of ustice to settle actual controversies involvin! ri!hts%hich are le!all# de"andable and enforceable, and to deter"ine %hether ornot there has been a!rave abuse of discretion a"ountin! to lac( or e$cess of urisdiction on the part of an# branch orinstru"entalit# of the overn"ent.10)E"phasis supplied+

n the other hand, respondents relied on its constitutional "andate to decide all Huestionsaffectin!elections. Article I?>C, Section 3)6+ of the Constitution, provides@

Sec. 3. &he Co""ission on Elections shall e$ercise the follo%in! po%ers and functions@

. . . .

















)6+ Decide, e$cept those involvin! the ri!ht to vote, all Huestions affectin! elections, includin!deter"ination of the nu"ber and location of pollin! places, appoint"ent of election officials andinspectors, and re!istration of voters.

Respondents2 reliance on this provision is "isplaced.

'e are not confronted here %ith the Huestion of %hether the CME*EC, in its e$ercise of urisdiction, !ravel# abused it. 'e are confronted %ith the Huestion as to %hether the CME*EC hadan# urisdiction at all %ith its acts threatenin! i""inent cri"inal action effectivel# abrid!in!"eanin!ful political speech.

It is clear that the subect "atter of the controvers# is the effect of CME*EC2s notice and letter onfree speech. &his does not fall under Article I?>C, Section 3)6+ of the Constitution. &he use of the%ord 9affectin!9 in this provision cannot be interpreted to "ean that CME*EC has the e$clusivepo%er to decide an# and allHuestions that arise durin! elections. CME*EC2s constitutionalco"petencies durin! elections should not operate to divest this court of its o%n urisdiction.

&he "ore relevant provision for urisdiction in this case is Article =III, Section 1)/+ of the

Constitution.&his provision provides for this court2s ori!inal urisdiction over petitions for certiorari andprohibition. &his should be read alon!side the e$panded urisdiction of the court in Article =III,Section / of the Constitution.

Certainl#, a breach of the funda"ental ri!ht of e$pression b# CME*EC is !rave abuse ofdiscretion. &hus, the constitutionalit# of the notice and letter co"in! fro" CME*EC is %ithin thiscourt2s po%er to revie%.

Durin! elections, %e have the po%er and the dut# to correct an# !rave abuse of discretion or an# acttainted %ith unconstitutionalit# on the part of an# !overn"ent branch or instru"entalit#. &his includesactions b# the CME*EC. 4urther"ore, it is this court2s constitutional "andate to protect the peoplea!ainst !overn"ent2s infrin!e"ent of their funda"ental ri!hts. &his constitutional "andate out

%ei!hs the urisdiction vested %ith the CME*EC.

It %ill, thus, be "anifest inustice if the court does not ta(e urisdiction over this case.

I.C

;ierarch# of courts

&his brin!s us to the issue of %hether petitioners violated the doctrine of hierarch# of courts indirectl# filin! their petition before this court.

Respondents contend that petitioners2 failure to file the proper suit %ith a lo%er court of concurrent

urisdiction is sufficient !round for the dis"issal of their petition.17

&he# add that observation of thehierarch# of courts is co"pulsor#, citin! ;eirs of Bertuldo ;ino! v. Melicor.1F 'hile respondents clai"that %hile there are e$ceptions to the !eneral rule on hierarch# of courts, none of these are presentin this case.1G

n the other hand, petitioners cite 4ortich v. Corona05 on this court2s discretionar# po%er to ta(eco!niance of a petition filed directl# to it if %arranted b# 9co"pellin! reasons, or b# the nature andi"portance of the issues raised. . . .9 0/ Petitioners sub"it that there are 9e$ceptional and co"pellin!reasons to ustif# a direct resort %ith this Court.903

















In Bae, r. v. Concepcion,06 %e e$plained the necessit# of the application of the hierarch# of courts@

&he Court "ust enoin the observance of the polic# on the hierarch# of courts, and no% affir"s thatthe polic# is not to be i!nored %ithout serious conseHuences. &he strictness of the polic# is desi!nedto shield the Court fro" havin! to deal %ith causes that are also %ell %ithin the co"petence of thelo%er courts, and thus leave ti"e to the Court to deal %ith the "ore funda"ental and "ore essential

tas(s that the Constitution has assi!ned to it. &he Court "a# act on petitions for the e$traordinar#%rits of certiorari, prohibition and "anda"us onl# %hen absolutel# necessar# or %hen serious andi"portant reasons e$ist to ustif# an e$ception to the polic#.0<

In Bae, %e also elaborated on the reasons %h# lo%er courts are allo%ed to issue %rits of certiorari,prohibition, and "anda"us, citin! =er!ara v. Suelto@01

&he Supre"e Court is a court of lastresort, and "ust so re"ain if it is to satisfactoril# perfor" thefunctions assi!ned to it b# the funda"ental charter and i""e"orial tradition. It cannot and shouldnot be burdened %ith the tas( of dealin! %ith causes in the first instance. Its ori!inal urisdiction toissue the so>called e$traordinar# %rits should be e$ercised onl# %here absolutel# necessar# or%here serious and i"portant reasons e$ist therefore. ;ence, that urisdiction should !enerall# be

e$ercised relative to actions or proceedin!s before the Court of Appeals, or before constitutional orother tribunals, bodies or a!encies %hose acts for so"e reason or another are not controllable b#the Court of Appeals. 'here the issuance of an e$traordinar# %rit is also %ithin the co"petence ofthe Court of Appeals or a Re!ional &rial Court, it is in either of these courts that the specific action for the %rit2s procure"ent "ust be presented. &his is and should continue to be the polic# in this re!ard,a polic# that courts and la%#ers "ust strictl# observe.00 )E"phasis o"itted+

&he doctrine that reHuires respect for the hierarch# of courts %as created b# this court to ensure thatever# level of the udiciar# perfor"s its desi!nated roles in an effective and efficient "anner. &rialcourts do not onl# deter"ine the facts fro" the evaluation of the evidence presented before the".&he# are li(e%ise co"petent to deter"ine issues of la% %hich "a# include the validit# of anordinance, statute, or even an e$ecutive issuance in relation to the Constitution.07 &o effectivel#perfor" these functions, the# are territoriall# or!anied into re!ions and then into branches. &heir

%rits !enerall# reach %ithin those territorial boundaries. Necessaril#, the# "ostl# perfor" the all>i"portant tas( of inferrin! the facts fro" the evidence as these are ph#sicall# presented beforethe". In "an# instances, the facts occur %ithin their territorial urisdiction, %hich properl# present theactual case2 that "a(es ripe a deter"ination of the constitutionalit# of such action. &heconseHuences, of course, %ould be national in scope. &here are, ho%ever, so"e cases %here resortto courts at their level %ould not be practical considerin! their decisions could still be appealedbefore the hi!her courts, such as the Court of Appeals.

&he Court of Appeals is pri"aril# desi!ned as an appellate court that revie%s the deter"ination offacts and la% "ade b# the trial courts. It is colle!iate in nature. &his nature ensures "orestandpoints in the revie% of the actions of the trial court. But the Court of Appeals also has ori!inal

urisdiction over "ost special civil actions. :nli(e the trial courts, its %rits can have a nation%ide

scope. It is co"petent to deter"ine facts and, ideall#, should act on constitutional issues that"a# notnecessaril# be novel unless there are factual Huestions to deter"ine.

&his court, on the other hand, leads the udiciar# b# brea(in! ne% !round or further reiteratin! - inthe li!ht of ne% circu"stances or in the li!ht of so"e confusions of bench or bar - e$istin!precedents. Rather than a court of first instance or as a repetition of the actions of the Court of

Appeals, this court pro"ul!ates these doctrinal devices in order that it trul# perfor"s that role.














In other %ords, the Supre"e Court2s role to interpret the Constitution and act in order to protectconstitutional ri!hts %hen these beco"e e$i!ent should not be e"asculated b# the doctrine inrespect of the hierarch# of courts. &hat has never been the purpose of such doctrine.

&hus, the doctrine of hierarch# of courts is not an iron>clad rule. 0F &his court has 9full discretionar#po%er to ta(e co!niance and assu"e urisdiction over special civil actions for certiorari . . .filed

directl# %ith it for e$ceptionall# co"pellin! reasons 0G or if %arranted b# the nature of the issuesclearl# and specificall# raised in the petition.975 As correctl# pointed out b# petitioners,7/ %e haveprovided e$ceptions to this doctrine@

4irst, a direct resort to this court is allo%ed %hen there are !enuine issues of constitutionalit# that"ust be addressed at the "ost i""ediate ti"e. A direct resort to this court includes availin! of there"edies of certiorari and prohibition toassail the constitutionalit# of actions of both le!islative ande$ecutive branches of the !overn"ent.73

In this case, the assailed issuances of respondents preudice not onl# petitioners2 ri!ht to freedo" ofe$pression in the present case, but also of others in future si"ilar cases. &he case before this courtinvolves an active effort on the part of the electorate to refor" the political landscape. &his has

beco"e a rare occasion %hen private citiens activel# en!a!e the public in political discourse. &oHuote an e"inent political theorist@

&he theor# of freedo" of e$pression involves "ore than a techniHue for arrivin! at better social ud!"ents throu!h de"ocratic procedures. It co"prehends a vision of societ#, a faith and a %hole%a# of life. &he theor# !re% out of an a!e that %as a%a(ened and invi!orated b# the idea of ne%societ# in %hich "an8s "ind %as free, his fate deter"ined b# his o%n po%ers of reason, and hisprospects of creatin! a rational and enli!htened civiliation virtuall# unli"ited. It is put for%ard as aprescription for attainin! a creative, pro!ressive, e$citin! and intellectuall# robust co""unit#. Itconte"plates a "ode of life that, throu!h encoura!in! toleration, s(epticis", reason and initiative,%ill allo% "an to realie his full potentialities.It spurns the alternative of a societ# that is t#rannical,confor"ist, irrational and sta!nant.76

In a de"ocrac#, the citien2s ri!ht tofreel# participate in the e$chan!e of ideas in furtherance ofpolitical decision>"a(in! is reco!nied. It deserves the hi!hest protection the courts "a# provide, aspublic participation in nation>buildin! isa funda"ental principle in our Constitution. As such, theirri!ht to en!a!e in free e$pression of ideas "ust be !iven i""ediate protection b# this court.

A second e$ception is %hen the issuesinvolved are of transcendental i"portance.7< In these cases,the i""inence and clarit# of the threat to funda"ental constitutional ri!hts out%ei!h the necessit# for prudence. &he doctrine relatin! to constitutional issues of transcendental i"portance prevents courtsfro" the paral#sis of procedural niceties %hen clearl# faced %ith the need for substantial protection.

In the case before this court, there is a clear threat to the para"ount ri!ht of freedo" of speech andfreedo" of e$pression %hich %arrants invocation of relief fro" this court. &he principles laid do%n in

this decision %ill li(el# influence the discourse of freedo" of speech in the future, especiall# in theconte$t of elections. &he ri!ht to suffra!e not onl# includes the ri!ht to vote for one2s chosencandidate, but also the ri!ht to vocalie that choice to the public in !eneral, in the hope of influencin!their votes. It "a# be said that in an election #ear, the ri!ht to vote necessaril# includes the ri!ht tofree speech and e$pression. &he protection of these funda"ental constitutional ri!hts, therefore,allo%s for the i""ediate resort to this court.

&hird, cases of first i"pression71 %arrant a direct resort to this court. In cases of first i"pression, no urisprudence #et e$ists that %ill !uide the lo%er courts on this "atter. In overn"ent of the :nited




















States v. Pur!anan,70 this court too( co!niance of the case as a "atter of first i"pression that "a#!uide the lo%er courts@

In the interest of ustice and to settle once and for all the i"portant issue of bail in e$traditionproceedin!s, %e dee" it best to ta(e co!niance of the present case. Such proceedin!s constitute a"atter of first i"pression over %hich there is, as #et, no local urisprudence to !uide lo%er courts.77

&his court finds that this is indeed a case of first i"pression involvin! as it does the issue of %hetherthe ri!ht of suffra!e includes the ri!ht of freedo" of e$pression. &his is a Huestion %hich this courthas #et to provide substantial ans%ers to, throu!h urisprudence. &hus, direct resort to this court isallo%ed.

4ourth, the constitutional issues raisedare better decided b# this court. In Drilon v. *i",7F this courtheld that@

. . . it %ill be prudent for such courts, if onl# out of a beco"in! "odest#, to defer to the hi!her ud!"entof this Court in the consideration of its validit#, %hich is better deter"ined after a thorou!hdeliberation b# a colle!iate bod# and %ith the concurrence of the "aorit# of those %ho participated

in its discussion.7G

)Citation o"itted+

In this case, it is this court, %ith its constitutionall# enshrined udicial po%er, that can rule %ith finalit#on %hether CME*EC co""itted !rave abuse of discretion or perfor"ed acts contrar# to theConstitution throu!h the assailed issuances.

4ifth, the ti"e ele"ent presented in this case cannot be i!nored. &his case %as filed durin! the 35/6election period. Althou!h the elections have alread# been concluded, future cases "a# be filed thatnecessitate ur!enc# in its resolution. E$i!enc# in certain situations %ould Hualif# as an e$ception fordirect resort to this court.

Si$th, the filed petition revie%s the act of a constitutional or!an. CME*EC is a constitutional bod#.

In Albano v. Arran,F5

cited b# petitioners, this court held that 9it is eas# to realie the chaos that%ould ensue if the Court of 4irst Instance ofeach and ever# province %ere to arro!ate itself thepo%er to disre!ard, suspend, or contradict an# order of the Co""ission on Elections@ thatconstitutional bod# %ould be speedil# reduced to i"potence.9F/

In this case, if petitioners sou!ht to annul the actions of CME*EC throu!h pursuin! re"edies %iththe lo%er courts, an# rulin! on their part %ould not have been bindin! for other citiens %ho"respondents "a# place in the sa"e situation. Besides, thiscourt affords !reat respect to theConstitution and the po%ers and duties i"posed upon CME*EC. ;ence, a rulin! b# this court%ould be in the best interest of respondents, in order that their actions "a# be !uided accordin!l# inthe future.

Seventh, petitioners ri!htl# clai" that the# had no other plain, speed#, and adeHuate re"ed# in theordinar# course of la% that could free the" fro" the inurious effects of respondents2 acts in violationof their ri!ht to freedo" of e$pression.

In this case, the repercussions of the assailed issuances on this basic ri!ht constitute ane$ceptionall# co"pellin! reason to ustif# the direct resort to this court. &he lac( of other sufficientre"edies in the course of la% alone is sufficient !round to allo% direct resort to this court.















Ei!hth, the petition includes Huestionsthat are 9dictated b# public %elfare and the advance"ent ofpublic polic#, or de"anded b# the broader interest of ustice, or the orders co"plained of %ere foundto be patent nullities, or the appeal %as consideredas clearl# an inappropriate re"ed#.9F3 In the past,Huestions si"ilar to these %hich this court ruled on i""ediatel# despite the doctrine of hierarch# ofcourts included citiens2 ri!ht to bear ar"s,F6 !overn"ent contracts involvin! "oderniation of voters2re!istration lists,F< and the status and e$istence of a public office.F1

&his case also poses a Huestion of si"ilar, if not !reater i"port. ;ence, a direct action to this court isper"itted.

It is not, ho%ever, necessar# that all of these e$ceptions "ust occur at the sa"e ti"e to ustif# adirect resort to this court. 'hile !enerall#, the hierarch# of courts is respected, the present case fallsunder the reco!nied e$ceptions and, as such, "a# be resolved b# this court directl#.

I.D

&he concept of a political Huestion

Respondents ar!ue further that the sie li"itation and its reasonableness is a political Huestion,hence not %ithin the a"bit of this court2s po%er of revie%. &he# cite ustice =itu!2s separate opinionin s"ea v. CME*ECF0 to support their position@

It "i!ht be %orth "entionin! that Section 30, Article II, of the Constitution also states that the 9Stateshall !uarantee eHual access to opportunities for public service, and prohibit political d#nasties as"a# be defined b# la%.9 I see neither Article I? )C+)<+ nor Section 30, Article II, of the Constitution tobe all that adversarial or irreconcilabl# inconsistent %ith the ri!ht of free e$pression. In an# event, thelatter, bein! one of !eneral application, "ust #ield to the specific de"ands of the Constitution. &hefreedo" of e$pression concededl# holds, it is true, a vanta!e point in hierarch# of constitutionall#>enshrined ri!hts but, li(e all funda"ental ri!hts, it is not %ithout li"itations.

&he case is not about a fi!ht bet%een the 9rich9 and the 9poor9 or bet%een the 9po%erful9 and the9%ea(9 in our societ# but it is to "e a !enuine atte"pt on the part of Con!ress and the Co""issionon Elections to ensure that all candidates are !iven an eHual chance to "edia covera!e and thereb#be eHuall# perceived as !ivin! real life to the candidates2 ri!ht of free e$pression rather than bein!vie%ed as an undue restriction of that freedo". &he %isdo" in the enact"ent of the la%, i.e., that%hich the le!islature dee"s to be best in !ivin! life to the Constitutional "andate, is not for theCourt to Huestion it is a "atter that lies be#ond the nor"al prero!atives of the Court to pass upon. F7

&his separate opinion is co!ent for the purpose it %as said. But it is not in point in this case.

&he present petition does not involve a dispute bet%een the rich and poor, or the po%erful and %ea(,on their eHual opportunities for "edia covera!e of candidates and their ri!ht to freedo" ofe$pression. &his case concerns the ri!ht of petitioners, %ho are non>candidates, to post the tarpaulinin their private propert#, asan e$ercise of their ri!ht of free e$pression. Despite the invocation of thepolitical Huestion doctrine b# respondents, this court is not proscribed fro" decidin! on the "erits ofthis case.

In &aada v. Cuenco,FF this court previousl# elaborated on the concept of %hat constitutes a politicalHuestion@



















'hat is !enerall# "eant, %hen it is said that a Huestion is political, and not udicial, is that it is a"atter %hich is to be e$ercised b# the people in their pri"ar# political capacit#, or that it has beenspecificall# dele!ated to so"e other depart"ent or particular officer of the !overn"ent,%ithdiscretionar# po%er to act.FG )E"phasis o"itted+

It is not for this court to rehearse and re>enact political debates on %hat the te$t of the la% should be.

In political foru"s, particularl# the le!islature, the creation of the te$tof the la% is based on a !eneraldiscussion of factual circu"stances, broadl# construed in order to allo% for !eneral application b#the e$ecutive branch. &hus, the creation of the la% is not li"ited b# particular and specific facts thataffect the ri!hts of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on e$istin! facts established on aspecific case>to>case basis, %here parties affected b# the le!al provision see( the courts2understandin! of the la%.

&he co"ple"entar# nature of the political and udicial branches of !overn"ent is essential in orderto ensure that the ri!hts of the !eneral public are upheld at all ti"es. In order to preserve thisbalance, branches of !overn"ent "ust afford due respectand deference for the duties and functions

constitutionall# dele!ated to the other. Courts cannot rush to invalidate a la% or rule. Prudencedictates that %e are careful not to veto political acts unless %e can craft doctrine narro%l# tailored tothe circu"stances of the case.

&he case before this court does not call for the e$ercise of prudence or "odest#. &here is no politicalHuestion. It can be acted upon b# this court throu!h the e$panded urisdiction !ranted to this courtthrou!h Article =III, Section / of the Constitution.

A political Huestion arises in constitutional issues relatin! to the po%ers or co"petence of differenta!encies and depart"ents of the e$ecutive or those of the le!islature. &he political Huestion doctrineis used as a defense %hen the petition as(s this court to nullif# certain acts that are e$clusivel#%ithin the do"ain of their respective co"petencies, as provided b# the Constitution or the la%. Insuch situation, presu"ptivel#, this court should act %ith deference. It %ill decline to void an actunless the e$ercise of that po%er %as so capricious and arbitrar# so as to a"ount to !rave abuse ofdiscretion.

&he concept of a political Huestion, ho%ever, never precludes udicial revie% %hen the act of aconstitutional or!an infrin!es upon a funda"ental individual or collective ri!ht. Even assu"in!ar!uendo that the CME*EC did have the discretion to choose the "anner of re!ulation of thetarpaulin in Huestion, it cannot do so b# abrid!in! the funda"ental ri!ht to e$pression.

Marcos v. Man!lapusG5 li"ited the use of the political Huestion doctrine@

'hen political Huestions are involved, the Constitution li"its the deter"ination to %hether or notthere has been a !rave abuse of discretion a"ountin! to lac( or e$cess of urisdiction on the part of

the official %hose action is bein! Huestioned. If !rave abuse is not established, the Court %ill notsubstitute its ud!"ent for that of the official concerned and decide a "atter %hich b# its nature or b#la% is for the latter alone to decide.G/

;o% this court has chosen to address the political Huestion doctrine has under!one an evolutionsince the ti"ethat it had been first invo(ed in Marcos v. Man!lapus. Increasin!l#, this court has ta(enthe historical and social conte$t of the case and the relevance of pronounce"ents of carefull# andnarro%l# tailored constitutional doctrines. &his trend %as follo%ed in cases such as Daa v.Sin!sonG3 and Coseten! v. Mitra r .G6














Daa and Coseten! involved a Huestion as to the application of Article =I, Section /F of the /GF7Constitution involvin! the re"oval of petitioners fro" the Co""ission on Appoint"ents. In ti"espast, this %ould have involved a Huint essentiall# political Huestion as it related to the do"inance ofpolitical parties in Con!ress. ;o%ever, in these cases, this court e$ercised its po%er of udicialrevie% notin! that the reHuire"ent of interpretin! the constitutional provision involved the le!alit# andnot the %isdo" of a "anner b# %hich a constitutional dut# or po%er %as e$ercised. &his approach

%as a!ain reiterated in Defensor Santia!o v. uin!ona, r.G<

In Inte!rated Bar of the Philippines v. Oa"ora,G1 this court declared a!ain that the possible e$istenceofa political Huestion did not bar an e$a"ination of %hether the e$ercise of discretion %as done %ith!rave abuse of discretion. In that case, this court ruled on the Huestion of %hether there %as !raveabuse of discretion in the President2s use of his po%er to call out the ar"ed forces to prevent andsuppress la%less violence.

In Estrada v. Desierto,G0 this court ruled that the le!al Huestion as to %hether a for"er Presidentresi!ned %as not a political Huestion even if the conseHuences %ould be to ascertain the politicalle!iti"ac# of a successor President.

Man# constitutional cases arise fro" political crises. &he actors in such crises "a# use theresolution of constitutional issues as levera!e. But the e$panded urisdiction of this court no%"andates a dut# for it to e$ercise its po%er of udicial revie% e$pandin! on principles that "a# avertcatastrophe or resolve social conflict.

&his court2s understandin! of the political Huestion has not been static or unbendin!. In *la"as v.E$ecutive Secretar# scar rbos,G7 this court held@

'hile it is true that courts cannot inHuire into the "anner in %hich the President8s discretionar#po%ers are e$ercised or into the %isdo" for its e$ercise, it is also a settled rule that %hen the issueinvolved concerns the validit# of such discretionar# po%ers or %hether said po%ers are %ithin theli"its prescribed b# the Constitution, 'e %ill not decline to e$ercise our po%er of udicial revie%. Andsuch revie% does not constitute a "odification or correction of the act of the President, nor does itconstitute interference %ith the functions of the President.GF

&he concept of udicial po%er in relation to the concept of the political Huestion %as discussed "oste$tensivel# in 4rancisco v. ;RE&.GG In this case, the ;ouse of Representatives ar!uedthat theHuestion of the validit# of the second i"peach"ent co"plaint that %as filed a!ainst for"er Chiefustice ;ilario Davide %as a political Huestion be#ond the a"bit of this court. 4or"er Chief usticeRe#nato Puno elaborated on this concept in his concurrin! and dissentin! opinion@

&o be sure, the force to i"pu!n the urisdiction of this Court beco"es "ore feeble in li!ht of the ne%Constitution %hich e$panded the definition of udicial po%er as includin! 9the dut# of the courts of

ustice to settle actual controversies involvin! ri!hts %hich are le!all# de"andable and enforceable,and to deter"ine %hether or not there has been a !rave abuse of discretion a"ountin! to lac( or

e$cess of urisdiction on the part of an# branch or instru"entalit# of the overn"ent.9 As %ellobserved b# retired ustice Isa!ani Cru, this e$panded definition of udicial po%er considerabl#constricted the scope of political Huestion. ;e opined that the lan!ua!e lu"inousl# su!!ests that thisdut# )and po%er+ is available even a!ainst the e$ecutive and le!islative depart"ents includin! thePresident and the Con!ress, in the e$ercise of their discretionar# po%ers./55 )E"phasis in theori!inal, citations o"itted+

4rancisco also provides the cases %hich sho% the evolution of the political Huestion, as applied inthe follo%in! cases@



















In Marcos v. Man!lapus, this Court, spea(in! throu!h Mada"e ustice Irene Cortes, held@ &hepresent Constitution li"its resort to the political Huestion doctrine and broadens the scope of udicialinHuir# into areas %hich the Court,under previous constitutions, %ould have nor"all# left to thepolitical depart"ents to decide. $ $ $

In Ben!on v. Senate Blue Ribbon Co""ittee, throu!h ustice &eodoro Padilla, this Court declared@

&he 9allocation of constitutional boundaries9 is a tas( that this Court "ust perfor" under theConstitution. Moreover, as held in a recent case, 9)t+he political Huestion doctrine neither interposesan obstacle to udicial deter"ination of the rival clai"s. &he urisdiction to deli"it constitutionalboundaries has been !iven to this Court. It cannot abdicate that obli!ation "andated b# the /GF7Constitution, althou!h said provision b# no "eans does a%a# %ith the applicabilit# of the principle inappropriate cases.9 )E"phasis and italics supplied+

And in Daa v. Sin!son, spea(in! throu!h ustice Isa!ani Cru, this Court ruled@

In the case no% before us, the urisdictional obection beco"es even less tenable and decisive. &hereason is that, even if %e %ere to assu"e that the issue presented before us %as political in nature,

%e %ould still not be precluded fro" resolvin! it under the e$panded urisdiction conferred upon usthat no% covers, in proper cases, even the political Huestion.$ $ $ )E"phasis and italics supplied.+

. . . .

In our urisdiction, the deter"ination of %hether an issue involves a trul# political and non>usticiableHuestion lies in the ans%er to the Huestion of %hether there are constitutionall# i"posed li"its onpo%ers or functions conferred upon political bodies. If there are, then our courts are dut#>bound toe$a"ine %hether the branch or instru"entalit# of the !overn"ent properl# acted %ithin suchli"its./5/ )Citations o"itted+

As stated in 4rancisco, a political Huestion %ill not be considered usticiable if there are no

constitutionall# i"posed li"its on po%ers or functions conferred upon political bodies. ;ence, thee$istence of constitutionall# i"posed li"its ustifies subectin! the official actions of the bod# to thescrutin# and revie% of this court.

In this case, the Bill of Ri!hts !ives the ut"ost deference to the ri!ht to free speech. An# instancethat this ri!ht "a# be abrid!ed de"ands udicial scrutin#. It does not fall sHuarel# into an# doubt thata political Huestion brin!s.

I.E

E$haustion of ad"inistrative re"edies

Respondents alle!e that petitioners violated the principle of e$haustion of ad"inistrative re"edies.Respondents insist that petitioners should have first brou!ht the "atter to the CME*EC En Banc or an# of its divisions./53

Respondents point out that petitioners failed to co"pl# %ith the reHuire"ent in Rule 01 that 9there isno appeal, or an# plain, speed#, and adeHuate re"ed# in the ordinar# course of la%.9/56 &he# add thatthe proper venue to assail the validit# of the assailed issuances %as in the course of anad"inistrative hearin! to be conducted b# CME*EC./5< In the event that an election offense is filed












a!ainst petitioners for postin! the tarpaulin, the# clai" that petitioners should resort to the re"ediesprescribed in Rule 6< of the CME*EC Rules of Procedure./51

&he ar!u"ent on e$haustion of ad"inistrative re"edies is not proper in this case.

Despite the alle!ed non>e$haustion of ad"inistrative re"edies, it is clear that the controvers# is

alread# ripe for adudication. Ripeness is the 9prereHuisite that so"ethin! had b# then beenacco"plished or perfor"ed b# either branch or in this case, or!an of !overn"ent before a court"a# co"e into the picture.9/50

Petitioners2 e$ercise of their ri!htto speech, !iven the "essa!e and their "ediu", hadunderstandable relevance especiall# durin! the elections. CME*EC2s letter threatenin! the filin! ofthe election offense a!ainst petitioners is alread# an actionable infrin!e"ent of this ri!ht. &hei"pendin! threat of cri"inal liti!ation is enou!h to curtail petitioners2 speech.

In the conte$t of this case, e$haustion of their ad"inistrative re"edies as CME*EC su!!ested intheir pleadin!s prolon!s the violation of their freedo" of speech.

Political speech eno#s preferred protection %ithin our constitutional order. In Chave v.onales,/57 ustice Carpio in a separate opinion e"phasied@ 9if everthere is a hierarch# ofprotected e$pressions, political e$pression %ould occup# the hi!hest ran(, and a"on! different (indsof political e$pression, the subect of fair and honest elections %ould be at the top.9/5F Soverei!nt#resides in the people./5G Political speech is a direct e$ercise of the soverei!nt#. &he principle ofe$haustion of ad"inistrative re"edies #ields in order to protect this funda"ental ri!ht.

Even assu"in! that the principle of e$haustion of ad"inistrative re"edies is applicable, the currentcontrovers# is %ithin the e$ceptions to the principle. In Chua v. An!,//5 this court held@

n the other hand, prior e$haustion of ad"inistrative re"edies "a# be dispensed %ith and udicialaction "a# be validl# resorted to i""ediatel#@ )a+ %hen there is a violation of due process )b+ %hen

the issue involved is purel# a le!al Huestion )c+ %hen the ad"inistrative action is patentl# ille!ala"ountin! to lac( or e$cess of urisdiction )d+ %hen there is estoppel on the part ofthead"inistrative a!enc# concerned )e+ %hen there is irreparable inur# )f+ %hen the respondent is adepart"ent secretar# %hose acts as analter e!o of the President bear the i"plied and assu"edapproval of the latter )!+ %hen to reHuire e$haustion of ad"inistrative re"edies %ould beunreasonable )h+ %hen it %ould a"ount to a nullification of a clai" )i+ %hen the subect "atter is aprivate land in land case proceedin!s )+ %henthe rule does not provide a plain, speed# andadeHuate re"ed# or )(+ %hen there are circu"stances indicatin! the ur!enc# of udicialintervention.9/// )E"phasis supplied, citation o"itted+

&he circu"stances e"phasied are sHuarel# applicable %ith the present case. 4irst, petitionersalle!ethat the assailed issuances violated their ri!ht to freedo" of e$pression and the principle ofseparation of church and state. &his is a purel# le!al Huestion. Second, the circu"stances of the

present case indicate the ur!enc# of udicial intervention considerin! the issue then on the R; *a%as %ell as the upco"in! elections. &hus, to reHuire the e$haustion of ad"inistrative re"edies in thiscase %ould be unreasonable.

&i"e and a!ain, %e have held that this court 9has the po%er to rela$ or suspend the rules or toe$cept a case fro" their operation %hen co"pellin! reasons so %arrant, or %henthe purpose of

ustice reHuires it, and %hen %hat constitutes as !ood and sufficient cause that %ill "eritsuspension of the rules is discretionar# upon the court9.//3Certainl#, this case of first i"pression%here CME*EC has threatenedto prosecute private parties %ho see( to participate in the elections



















b# callin! attention to issues the# %ant debated b# the publicin the "anner the# feel %ould beeffective is one of those cases.

IIS:BS&AN&I=E ISS:ES

II.A

CME*EC had no le!al basis to re!ulate e$pressions "ade b# private citiens

Respondents cite the Constitution, la%s, and urisprudence to support their position that the# had thepo%er to re!ulate the tarpaulin.//6 ;o%ever, all of these provisions pertain to candidates and politicalparties. Petitioners are not candidates. Neither do the#belon! to an# political part#. CME*EC doesnot have the authorit# to re!ulate the eno#"ent of the preferred ri!ht to freedo" of e$pressione$ercised b# a non>candidate in this case.

II.A./

4irst, respondents cite Article I?>C, Section < of the Constitution, %hich provides@

Section <. &he Co""ission "a#,durin! the election period, supervise or re!ulate the eno#"ent orutiliation of all franchises or per"its for the operation of transportation and other public utilities,"edia of co""unication or infor"ation, all !rants, special privile!es, or concessions !ranted b# theovern"ent or an# subdivision, a!enc#, or instru"entalit# thereof, includin! an# !overn"ent>o%nedor controlled corporation or its subsidiar#. Such supervision or re!ulation shall ai" to ensure eHualopportunit#, ti"e, and space, and the ri!ht to repl#, includin! reasonable, eHual rates therefor, forpublic infor"ation ca"pai!ns and foru"s a"on! candidates in connection %ith the obective ofholdin! free, orderl#, honest, peaceful, and credible elections.//< )E"phasis supplied+

Sanidad v. CME*EC//1 involved the rules pro"ul!ated b# CME*EC durin! the plebiscite for the

creation of the Cordillera Autono"ous Re!ion.//0

Colu"nist Pablito =. Sanidad Huestioned theprovision prohibitin! ournalists fro" coverin! plebiscite issues on the da# before and on plebisciteda#.//7 Sanidad ar!ued that the prohibition %as a violation of the 9constitutional !uarantees of thefreedo" of e$pression and of the press. . . .9//F 'e held that the 9evil sou!ht to be prevented b# thisprovision is the possibilit# that a franchise holder "a# favor or !ive an# undue advanta!e to acandidate in ter"s of advertisin! space or radio or television ti"e.9//G &his court found that 9"ediapractitioners e$ercisin! their freedo" of e$pression durin! plebiscite periods are neither thefranchise holders nor the candidates,9/35 thus, their ri!ht to e$pression durin! this period "a# not bere!ulated b# CME*EC./3/

Si"ilar to the "edia, petitioners in the case at bar are neither franchise holders nor candidates.II.A.3

Respondents li(e%ise cite Article I?>C, Section 3)7+ of the Constitution as follo%s@/33


. . . .

)7+ Reco""end to the Con!ress effective "easures to "ini"ie election spendin!, includin!li"itation of places %here propa!anda "aterials shall be posted, and to prevent and penalie all



























for"s of election frauds, offenses, "alpractices, and nuisance candidates. )E"phasis supplied+Based on the enu"eration "ade on actsthat "a# be penalied, it %ill be inferred that this provisiononl# affects candidates.

Petitioners assail the 9Notice to Re"ove Ca"pai!n Materials9 issued b# CME*EC. &his %asfollo%ed b#the assailed letter re!ardin! the 9election propa!anda "aterial posted on the church

vicinit# pro"otin! for or a!ainst the candidates and part#>list !roups. . . .9/36

Section G of the 4air Election Act/3< on the postin! of ca"pai!n "aterials onl# "entions 9parties9 and9candidates9@

Sec. G. Postin! of Ca"pai!n Materials. > &he CME*EC "a# authorie political parties and part#>list!roups to erect co""on poster areas for their candidates in not "ore than ten )/5+ public placessuch as plaas, "ar(ets, baran!a# centers and the li(e, %herein candidates can post, displa# ore$hibit election propa!anda@ Provided, &hat the sie ofthe poster areas shall not e$ceed t%elve )/3+b# si$teen )/0+ feet or its eHuivalent. Independent candidates %ith no political parties "a# li(e%isebe authoried to erect co""on poster areas in not "ore than ten )/5+ public places, the sie of%hich shall not e$ceed four )<+ b# si$ )0+ feet or its eHuivalent. Candidates "a# post an# la%ful

propa!anda "aterial in private places %ith the consent of the o%ner thereof, and in public places orpropert# %hich shall be allocated eHuitabl# and i"partiall# a"on! the candidates. )E"phasissupplied+

Si"ilarl#, Section /7 of CME*EC Resolution No. G0/1, the rules and re!ulations i"ple"entin! the4air Election Act, provides as follo%s@

SEC&IN /7. Postin! of Ca"pai!n Materials. > Parties and candidates "a# post an# la%fulca"pai!n "aterial in@

a. Authoried co""on poster areasin public places subect to the reHuire"ents andKorli"itations set forth in the ne$t follo%in! section and

b. Private places provided it has the consent of the o%ner thereof.

&he postin! of ca"pai!n "aterials in public places outside of the desi!nated co""on poster areasand those enu"erated under Section 7 )!+ of these Rules and the li(e is prohibited. Persons postin!the sa"e shall be liable to!ether %ith the candidates and other persons %ho caused the postin!. It%ill be presu"ed that the candidates and parties caused the postin! of ca"pai!n "aterials outsidethe co""on poster areas if the# do not re"ove the sa"e %ithin three )6+ da#s fro" notice %hichshall be issued b# the Election fficer of the cit# or "unicipalit# %here the unla%ful electionpropa!anda are posted or displa#ed.

Me"bers of the PNP and other la% enforce"ent a!encies called upon b# the Election fficeror other officials of the CME*EC shall apprehend the violators cau!ht in the act, and file the appropriatechar!es a!ainst the". )E"phasis supplied+

Respondents considered the tarpaulin as a ca"pai!n "aterial in their issuances. &he aboveprovisions re!ulatin! the postin! of ca"pai!n "aterials onl# appl# to candidates and political parties,and petitioners are neither of the t%o.

Section 6 of Republic Act No. G550on 9*a%ful Election Propa!anda9 also states that these are9allo%ed for all re!istered political parties, national, re!ional, sectoral parties or or!aniations







participatin! under the part#>list elections and for all bona fide candidates see(in! national and localelective positions subect to the li"itation on authoried e$penses of candidates and political parties.. . .9 Section 0 of CME*EC Resolution No. G0/1 provides for a si"ilar %ordin!. &hese provisionssho% that election propa!anda refers to "atter done b# or on behalf of and in coordination %ithcandidates and political parties. So"e level of coordination %ith the candidates and political partiesfor %ho" the election propa!anda are released %ould ensure that these candidates and political

parties "aintain %ithin the authoried e$penses li"itation.

&he tarpaulin %as not paid for b#an# candidate or political part#./31 &here %as no alle!ation thatpetitioners coordinated %ith an# of the persons na"ed in the tarpaulin re!ardin! its postin!. n theother hand, petitioners posted the tarpaulin as part of their advocac# a!ainst the R; *a%.Respondents also cite National Press Club v. CME*EC/30 in ar!uin! that its re!ulator# po%er underthe Constitution, to so"e e$tent, set a li"it on the ri!ht to free speech durin! election period./37

National Press Club involved the prohibition on the sale and donation of space and ti"e for politicaladvertise"ents, li"itin! political advertise"ents to CME*EC>desi!nated space and ti"e. &his case%as brou!ht b# representatives of "ass "edia and t%o candidates for office in the /GG3 elections.&he# ar!ued that the prohibition on the sale and donation of space and ti"e for political

advertise"ents is tanta"ount to censorship, %hich necessaril# infrin!es on the freedo" of speech of the candidates./3F

&his court upheld the constitutionalit# of the CME*EC prohibition in National Press Club. ;o%ever,this case does not appl# as "ost of the petitioners %ere electoral candidates, unli(e petitioners inthe instant case. Moreover, the subect "atter of National Press Club, Section //)b+ of Republic ActNo. 00<0,/3G onl# refers to a particular (ind of "edia such as ne%spapers, radio broadcastin!, ortelevision./65 ustice 4eliciano e"phasied that the provision did not infrin!e upon the ri!ht ofreporters or broadcasters to air their co""entaries and opinions re!ardin! the candidates, theirHualifications, and pro!ra" for !overn"ent. Co"pared to Sanidad%herein the colu"nists lost theirabilit# to !ive their co""entar# on the issues involvin! the plebiscite, National Press Clubdoes notinvolve the sa"e infrin!e"ent.

In the case at bar, petitioners lost their abilit# to !ive a co""entar# on the candidates for the 35/6national elections because of the CME*EC notice and letter. It %as not "erel#a re!ulation on theca"pai!ns of candidates v#in! for public office. &hus, National Press Clubdoes not appl# to thiscase.

4inall#, Section 7G of Batas Pa"bansa Bl!. FF/, other%ise (no%n as the "nibus Election Code,defines an9election ca"pai!n9 as follo%s@

. . . .

)b+ &he ter" 9election ca"pai!n9 or 9partisan political activit#9 refers to an act desi!ned to pro"otethe election or defeat of a particular candidate or candidates to a public office %hich shall include@

)/+ 4or"in! or!aniations, associations, clubs, co""ittees or other !roups of persons for thepurpose of solicitin! votes andKor underta(in! an# ca"pai!n for or a!ainst a candidate

)3+ ;oldin! political caucuses, conferences, "eetin!s, rallies, parades, or other si"ilarasse"blies, for the purpose of solicitin! votes andKor underta(in! an# ca"pai!n orpropa!anda for or a!ainst a candidate


















)6+ Ma(in! speeches, announce"ents or co""entaries, or holdin! intervie%s for or a!ainstthe election of an# candidate for public office

)<+ Publishin! or distributin! ca"pai!n literature or "aterials desi!ned to support or opposethe election of an# candidate or

)1+ Directl# or indirectl# solicitin! votes, pled!es or support for or a!ainst a candidate.

&he fore!oin! enu"erated acts ifperfor"ed for the purpose of enhancin! the chances of aspirantsfor no"ination for candidac# to a public office b# a political part#, a!!roup"ent, or coalition of partiesshall not be considered as election ca"pai!n or partisan election activit#. Public e$pressions oropinions or discussions of probable issues in a forthco"in! electionor on attributes of or criticis"sa!ainst probable candidates proposed to be no"inated in a forthco"in! political part# conventionshall not be construed as part of an# election ca"pai!n or partisan political activit# conte"platedunder this Article. )E"phasis supplied+

&rue, there is no "ention %hether election ca"pai!n is li"ited onl# to the candidates and politicalparties the"selves. &he focus of the definition is that the act "ust be 9desi!ned to pro"ote the

election or defeat of a particular candidate or candidates to a public office.9

In this case, the tarpaulin contains speech on a "atter of public concern, that is, a state"ent ofeither appreciation or criticis" on votes "ade in the passin! of the R; la%. &hus, petitioners invo(etheir ri!ht to freedo" of e$pression.

II.B

&he violation of the constitutional ri!ht

to freedo" of speech and e$pression

Petitioners contend that the assailed notice and letter for the re"oval of the tarpaulin violate theirfunda"ental ri!ht to freedo" of e$pression.

n the other hand, respondents contend that the tarpaulin is an election propa!anda subect to theirre!ulation pursuant to their "andate under Article I?>C, Section < of the Constitution. &hus, theassailed notice and letter orderin! itsre"oval for bein! oversied are valid and constitutional./6/

II.B./

4unda"ental to the consideration of this issue is Article III, Section < of the Constitution@

Section <. No la% shall be passed abrid!in! the freedo" of speech, of e$pression, or of the press, or

the ri!ht of the people peaceabl# to asse"ble and petition the !overn"ent for redress of!rievances./63

No la%. . .

'hile it is true that the present petition assails not a la% but an opinion b# the CME*EC *a%Depart"ent, this court has applied Article III, Section < of the Constitution even to !overn"entalacts.







In Pri"icias v. 4u!oso,/66 respondent Ma#or applied b# analo!# Section ///G of the Revisedrdinances of /G37 of Manila for the public "eetin! and asse"bl# or!anied b# petitionerPri"icias./6< Section ///G reHuires a Ma#or2s per"it for the use of streets and public places forpurposes such as athletic !a"es, sports, or celebration of national holida#s./61 'hat %as Huestioned%as not a la% but the Ma#or2s refusal to issue a per"it for the holdin! of petitioner2s public"eetin!./60 Nevertheless, this court reco!nied the constitutional ri!ht to freedo" of speech, to

peaceful asse"bl# and to petition for redress of !rievances, albeit not absolute,/67

and the petition for"anda"us to co"pel respondent Ma#or to issue the per"it %as !ranted./6F

In ABS>CBN v. CME*EC, %hat %as assailed %as not a la% but CME*EC En Banc Resolution No.GF>/</G %here the CME*EC resolved to approve the issuance of a restrainin! order to stop ABS>CBN fro" conductin! e$it surve#s./6G &he ri!ht to freedo" of e$pression %as si"ilarl# upheld in thiscase and, conseHuentl#, the assailed resolution %as nullified and set aside. /<5

. . . shall be passed abrid!in!. . .

All re!ulations %ill have an i"pact directl# or indirectl# on e$pression. &he prohibition a!ainst theabrid!"ent of speech should not "ean an absolute prohibition a!ainst re!ulation. &he pri"ar# and

incidental burden on speech "ust be %ei!hed a!ainst a co"pellin! state interest clearl# allo%ed inthe Constitution. &he test depends on the relevant theor# of speech i"plicit in the (ind of societ#fra"ed b# our Constitution.

. . . of e$pression. . .

ur Constitution has also e$plicitl# included the freedo" of e$pression, separate and in addition tothe freedo" of speech and of the press provided in the :S Constitution. &he %ord 9e$pression9 %asadded in the /GF7 Constitution b# Co""issioner Broc(a for havin! a %ider scope@

MR. BRCA@ &his is a ver# "inor a"end"ent, Mr. Presidin! fficer. n Section G, pa!e 3, line 3G,it sa#s@ 9No la% shall be passed abrid!in! the freedo" of speech.9 I %ould li(e to reco""end to the

Co""ittee the chan!e of the %ord 9speech9 to E?PRESSIN or if not, add the %ords ANDE?PRESSIN after the %ord 9speech,9 because it is "ore e$pansive, it has a %ider scope, and it%ould refer to "eans of e$pression other than speech.

&;E PRESIDIN 44ICER )Mr.Ben!on+@ 'hat does the Co""ittee sa#Q

4R. BERNAS@ 9E$pression9 is "ore broad than speech. 'e accept it.

MR. BRCA@ &han( #ou.

&;E PRESIDIN 44ICER )Mr.Ben!on+@ Is it acceptedQ

4R. BERNAS@ es.

&;E PRESIDIN 44ICER )Mr.Ben!on+@ Is there an# obectionQ )Silence+ &he Chair hears nonethe a"end"ent is approved.

4R. BERNAS@ So, that provision %ill no% read@ 9No la% shall be passed abrid!in! the freedo" ofspeech, e$pression or of the press . . . .9/</ Speech "a# be said to be ine$tricabl# lin(ed to freedo"itself as 9the ri!ht to thin( is the be!innin! of freedo", and speech "ust be protected fro" the!overn"ent because speech is the be!innin! of thou!ht.9/<3




























II.B.3

Co""unication is an essential outco"e of protected speech. /<6 Co""unication e$ists %hen 9)/+ aspea(er, see(in! to si!nal others, uses conventional actions because he orshe reasonabl# believesthat such actions %ill be ta(en b# the audience in the "anner intended and )3+ the audience sota(es the actions.9/<< 9In co""unicative action, the hearer "a# respond to the clai"s b# . . . either

acceptin! the speech act2s clai"s or opposin! the" %ith criticis" or reHuests for ustification.9/<1

Speech is not li"ited to vocal co""unication. 9Conduct is treated as a for" of speech so"eti"esreferred to as s#"bolic speech,29/<0 such that 9%hen speech2 and nonspeech2 ele"ents areco"bined in the sa"e course of conduct,2 the co""unicative ele"ent2 of the conduct "a# besufficient to brin! into pla# the ri!ht to freedo" of e$pression.29/<7

&he ri!ht to freedo" of e$pression, thus, applies to the entire continuu" of speech fro" utterances"ade to conduct enacted, and even to inaction itself as a s#"bolic "anner of co""unication.

In Ebralina! v. &he Division Superintendent of Schools of Cebu,/<F students %ho %ere "e"bers ofthe reli!ious sect ehovah2s 'itnesses %ere to be e$pelled fro" school for refusin! to salute the

fla!, sin! the national anthe", and recite the patriotic pled!e./<G

In his concurrin! opinion, usticeCru discussed ho% the salute is a s#"bolic "anner of co""unication and a valid for" ofe$pression./15 ;e adds that freedo" of speech includes even the ri!ht to be silent@

4reedo" of speech includes the ri!ht to be silent. Aptl# has it been said that the Bill of Ri!hts that!uarantees to the individual the libert# to utter %hat is in his "ind also !uarantees to hi" the libert#not to utter %hat is not in his "ind. &he salute is a s#"bolic "anner of co""unication that conve#sits "essa!eas clearl# as the %ritten or spo(en %ord. As a valid for" of e$pression, it cannot beco"pelled an# "ore than it can be prohibited in the face of valid reli!ious obections li(e thoseraised in this petition. &o i"pose it on the petitioners is to den# the" the ri!ht not to spea( %hen their reli!ion bids the" to be silent. &his coercion of conscience has no place in the free societ#.

&he de"ocratic s#ste" provides for the acco""odation of diverse ideas, includin! theunconventional and even the biarre or eccentric. &he %ill of the "aorit# prevails, but it cannotre!i"ent thou!ht b# prescribin! the recitation b# rote of its opinions or proscribin! the assertion ofunorthodo$ or unpopular vie%s as inthis case. &he conscientious obections of the petitioners, noless than the i"patience of those %ho disa!ree %ith the", are protected b# the Constitution. &heState cannot "a(e the individual spea( %hen the soul %ithin rebels. /1/

Even before freedo" 9of e$pression9 %as included in Article III, Section < of the presentConstitution,this court has applied its precedent version to e$pressions other than verbal utterances.

In the /GF1 case of onale v. Chair"an ati!ba(,/13 petitioners obected to the classification of the"otion picture 9apit sa Patali"9 as 94or Adults nl#.9 &he# contend that the classification 9is %ithoutle!al and factual basis and is e$ercised as i"per"issible restraint of artistic e$pression.9/16 &his court

reco!nied that 9"otion pictures are i"portant both as a "ediu" for the co""unication of ideasand the e$pression of the artistic i"pulse.9 /1< It adds that 9ever# %riter,actor, or producer, no "atter%hat "ediu" of e$pression he "a# use, should be freed fro" the censor.9/11 &his court found that9the Board2s perception of %hat constitutes obscenit# appears to be undul# restrictive.9 /10 ;o%ever,the petition %as dis"issed solel# on the !round that there %ere not enou!h votes for a rulin! of!rave abuse of discretion in the classification "ade b# the Board./17

II.B.6



































Sie does "atter

&he for" of e$pression is ust as i"portant as the infor"ation conve#ed that it for"s part of thee$pression. &he present case is in point.

It is eas# to discern %h# sie "atters.

4irst, it enhances efficienc# in co""unication. A lar!er tarpaulin allo%s lar!er fonts %hich "a(e iteasier to vie% its "essa!es fro" !reater distances. 4urther"ore, a lar!er tarpaulin "a(es it easierfor passen!ers inside "ovin! vehicles to read its content. Co"pared %ith the pedestrians, thepassen!ers inside "ovin! vehicles have lesser ti"e to vie% the content of a tarpaulin. &he lar!er thefonts and i"a!es, the !reater the probabilit# that it %ill catch their attention and, thus, the !reater thepossibilit# that the# %ill understand its "essa!e.

Second, the sie of the tarpaulin "a# underscore the i"portance of the "essa!e to the reader. 4ro"an ordinar# person2s perspective, those %ho post their "essa!es in lar!er fonts care "ore abouttheir "essa!e than those %ho carr# their "essa!es in s"aller "edia. &he perceived i"portance!iven b# the spea(ers, in this case petitioners, to their cause is also part of the "essa!e. &he

effectivit# of co""unication so"eti"es relies on the e"phasis put b# the spea(ers and onthecredibilit# of the spea(ers the"selves. Certainl#, lar!er se!"ents of the public "a# tend to be "oreconvinced of the point "ade b# authoritative fi!ures %hen the# "a(e the effort to e"phasie their"essa!es.

&hird, lar!er spaces allo% for "ore "essa!es. *ar!er spaces, therefore, "a# translate to "oreopportunities to a"plif#, e$plain, and ar!ue points %hich the spea(ers "i!ht %ant to co""unicate.Rather than si"pl# placin! the na"es and i"a!es of political candidates and an e$pression ofsupport, lar!er spaces can allo% for brief but "e"orable presentations of the candidates2 platfor"sfor !overnance. *ar!er spaces allo% for "ore precise inceptions of ideas, catal#e reactions toadvocacies, and contribute "ore to a "ore educated and reasoned electorate. A "ore educatedelectorate %ill increase the possibilities of both !ood !overnance and accountabilit# in our!overn"ent.

&hese points beco"e "ore salient %hen it is the electorate, not the candidates or the politicalparties, that spea(s. &oo often, the ter"s of public discussion durin! elections are fra"ed and (epthosta!e b# brief and catch# but "eanin!less sound bites e$tollin! the character of the candidate.'orse, elections sideline political ar!u"ents and privile!e the endorse"ent b# celebrities. Ratherthan provide obstacles to their speech, !overn"ent should in fact encoura!e it. Bet%een thecandidates and the electorate, the latter have the better incentive to de"and discussion of the "orei"portant issues. Bet%een the candidates and the electorate, the for"er have better incentives toavoid difficult political standpoints and instead focus on appearances and e"pt# pro"ises.

*ar!e tarpaulins, therefore, are not analo!ous to ti"e and place./1F &he# are funda"entall# part ofe$pression protected under Article III, Section < of the Constitution.

II.B.<

&here are several theories and schools of thou!ht that stren!then the need to protect the basic ri!htto freedo" of e$pression.

4irst, this relates to the ri!ht ofthe people to participate in public affairs, includin! the ri!ht to criticie!overn"ent actions.





Proponents of the political theor# on 9deliberative de"ocrac#9 sub"it that 9substantial, open, andethical dialo!ue isa critical, and indeed definin!, feature of a !ood polit#.9/1G &his theor# "a# beconsidered broad, but it definitel# 9includes a collective decision "a(in! %ith the participation of all%ho %ill beaffected b# the decision.9/05 It anchors on the principle that the cornerstone of ever#de"ocrac# is that soverei!nt# resides in the people. /0/ &o ensure order in runnin! the state2s affairs,soverei!n po%ers %ere dele!ated and individuals %ould be elected or no"inated in (e# !overn"ent

positions to represent the people. n this note, the theor# on deliberative de"ocrac# "a# evolve tothe ri!ht of the people to "a(e !overn"ent accountable. Necessaril#, this includes the ri!ht of thepeople to criticie acts "ade pursuant to !overn"ental functions.

Speech that pro"otes dialo!ue on publicaffairs, or airs out !rievances and political discontent,should thus be protected and encoura!ed.

Borro%in! the %ords of ustice Brandeis, 9it is haardous to discoura!e thou!ht, hope andi"a!ination that fear breeds repression that repression breeds hate that hate "enaces stable!overn"ent that the path of safet# lies in the opportunit# to discuss freel# supposed !rievances andproposed re"edies.9/03

In this urisdiction, this court held that 9the interest of societ# and the "aintenance of !ood!overn"ent de"and a full discussion of public affairs.9/06 &his court has, thus, adopted the principlethat 9debate on public issues should be uninhibited, robust,and %ide open . . . includin! evenunpleasantl# sharp attac(s on !overn"ent and public officials.9/0<

Second, free speech should be encoura!ed under the concept of a "ar(et place of ideas. &histheor# %as articulated b# ustice ;ol"es in that 9the ulti"ate !ood desired is better reached b# thefree trade in ideas@9/01

'hen "en have realied that ti"e has upset "an# fi!htin! faiths, the# "a# co"e to believe even"ore than the# believe the ver# foundations of their o%n conduct that the ulti"ate !ood desired isbetter reached b# free trade in ideas > that the best test of truth is the po%er of the thou!ht to !etitself accepted in the co"petition of the "ar(et, and that truth is the onl# !round upon %hich their%ishes safel# can be carried out. /00

&he %a# it %or(s, the e$posure to the ideas of others allo%s one to 9consider, test, and develop theiro%n conclusions.9/07 A free, open, and d#na"ic "ar(et place of ideas is constantl# shapin! ne%ones. &his pro"otes both stabilit# and chan!e %here recurrin! points "a# cr#stallie and %ea( ones"a# develop. f course, free speech is "ore than the ri!ht to approve e$istin! political beliefs andecono"ic arran!e"ents as it includes, 9to paraphrase ustice ;ol"es, the freedo" for thethou!ht that %e hate, no less than for the thou!ht that a!rees %ith us.9 /0F In fact, free speech "a#9best serve its hi!h purpose %hen it induces a condition of unrest, creates dissatisfaction %ithconditions as the# are, or even stirs people to an!er.9/0G It is in this conte$t that %e should !uarda!ainst an# curtail"ent of the people2s ri!ht to participate in the free trade of ideas.

&hird, free speech involves self>e$pression that enhances hu"an di!nit#. &his ri!ht is 9a "eans ofassurin! individual self>fulfill"ent,9/75 a"on! others. In Philippine Bloo"in! Mills E"plo#eesr!aniation v. Philippine Bloo"in! Mills Co., Inc,/7/ this court discussed as follo%s@

&he ri!hts of free e$pression, free asse"bl# and petition, are not onl# civil ri!hts but also politicalri!hts essential to "an8s eno#"ent of his life, to his happiness and to his full and co"pletefulfill"ent.&hru these freedo"s the citiens can participate not "erel# in the periodic establish"entof the !overn"ent throu!h their suffra!e but also in the ad"inistration of public affairs as %ell as inthe discipline of abusive public officers. &he citien is accorded these ri!hts so that he can appeal to





























the appropriate !overn"ental officers or a!encies for redress and protection as %ell as for thei"position of the la%ful sanctions on errin! public officers and e"plo#ees./73 )E"phasis supplied+

4ourth, e$pression is a "ar(er for !roup identit#. 4or one, 9voluntar# associations perfor" ani"portant de"ocratic role in providin! foru"s for the develop"ent of civil s(ills, for deliberation,and for the for"ation of identit# and co""unit# spirit, and are lar!el# i""une fro" an#

!overn"ental interference.9/76 &he# also 9provide a buffer bet%een individuals and the state > a freespace for the develop"ent of individual personalit#, distinct !roup identit#, and dissident ideas > anda potential source of opposition to the state.9/7< 4ree speech "ust be protected as the vehicle to findthose %ho have si"ilar and shared values and ideals, to oin to!ether and for%ard co""on !oals.

4ifth, the Bill of Ri!hts, free speech included, is supposed to 9protect individuals and "inoritiesa!ainst "aoritarian abuses perpetrated throu!h the fra"e%or( of de"ocratic!overnance.9/71 4ederalist fra"ers led b# a"es Madison %ere concerned about t%o potentiall#vulnerable !roups@ 9the citienr# at lar!e > "aorities > %ho "i!ht be t#rannied or plundered b#despotic federal officials9/70 and the "inorities %ho "a# be oppressed b# 9do"inant factions of theelectorate that capture the !overn"ent for their o%n selfish ends.9/77 Accordin! to Madison, 9it isof !reat i"portance in a republic not onl# to !uard the societ# a!ainst the oppression of its rulers, but

to !uard one part of the societ# a!ainst the inustice of the other part.9

/7F

'e should strive to ensurethat free speech is protected especiall# in li!ht of an# potential oppression a!ainst those %ho findthe"selves in the frin!es on public issues.

*astl#, free speech "ust be protected under the safet# valve theor#./7G &his provides that 9nonviolent"anifestations of dissent reduce the li(elihood of violence.9 /F5 9A da" about to burst . . . resultin!in the ban(in! up of a "enacin! flood of sullen an!er behind the %alls of restriction29/F/ has beenused to describe the effect of repressin! nonviolent outlets./F3 In order to avoid this situation andprevent people fro" resortin! to violence, there is a need for peaceful "ethods in "a(in!passionate dissent. &his includes 9free e$pression and political participation9 /F6 in that the# can 9votefor candidates %ho share their vie%s, petition their le!islatures to "a(e or chan!e la%s, . . .distribute literature alertin! other citiens of their concerns,9/F< and conduct peaceful rallies andother si"ilar acts./F1 4ree speech "ust, thus, be protected as a peaceful "eans of achievin! one2s

!oal, considerin! the possibilit# that repression of nonviolent dissent "a# spill over to violent "eans ust to drive a point.

II.B.1

Ever# citien2s e$pression %ith political conseHuences eno#s a hi!h de!ree of protection.Respondents ar!ue that the tarpaulinis election propa!anda, bein! petitioners2 %a# of endorsin!candidates %ho voted a!ainst the R; *a% and reectin! those %ho voted for it. /F0 As such, it issubect to re!ulation b# CME*EC under its constitutional "andate. /F7 Election propa!anda isdefined under Section /)<+ of CME*EC Resolution No. G0/1 as follo%s@ SEC&IN /. Definitions . ..

. . . .

<. &he ter" 9political advertise"ent9 or 9election propa!anda9 refers to an# "atter broadcasted,published, printed, displa#ed or e$hibited, in an# "ediu", %hich contain the na"e, i"a!e, lo!o,brand, insi!nia, color "otif, initials, and other s#"bol or !raphic representation that is capable ofbein! associated %ith a candidate or part#, and is intended to dra% the attention of the public or ase!"ent thereof to pro"ote or oppose, directl# or indirectl#, the election of the said candidate orcandidates to a public office. In broadcast "edia, political advertise"ents "a# ta(e the for" ofspots, appearances on &= sho%s and radio pro!ra"s, live or taped announce"ents, teasers, and









































other for"s of advertisin! "essa!es or announce"ents used b# co""ercial advertisers. Politicaladvertisin! includes "atters, not fallin! %ithin the scope of personal opinion, that appear on an#Internet %ebsite, includin!, but not li"ited to, social net%or(s, blo!!in! sites, and "icro>blo!!in!sites, in return for consideration, or other%ise capable of pecuniar# esti"ation.

n the other hand, petitioners invo(e their 9constitutional ri!ht to co""unicate their opinions, vie%s

and beliefs about issues and candidates.9/FF &he# ar!ue that the tarpaulin %as their state"ent ofapproval and appreciation of the na"ed public officials2 act of votin! a!ainst the R; *a%, and theircriticis" to%ard those %ho voted in its favor./FG It %as 9part of their advocac# ca"pai!n a!ainst theR; *a%,9/G5 %hich %as not paid for b# an# candidate or political part#./G/ &hus, 9the Huestioned orders%hich . . . effectivel# restrained and curtailed their freedo" of e$pression should be declaredunconstitutional and void.9/G3

&his court has held free speech and other intellectual freedo"s as 9hi!hl# ran(ed in our sche"e ofconstitutional values.9/G6 &hese ri!hts eno# precedence and pri"ac#./G< In Philippine Bloo"in! Mills,this court discussed the preferred position occupied b# freedo" of e$pression@

Propert# and propert# ri!hts can belost thru prescription but hu"an ri!hts are i"prescriptible. If

hu"an ri!hts are e$tin!uished b# the passa!e of ti"e, then the Bill of Ri!hts is a useless atte"pt toli"it the po%er of !overn"ent and ceases to be an efficacious shield a!ainst the t#rann# of officials,of "aorities, ofthe influential and po%erful, and of oli!archs > political, econo"ic or other%ise.

In the hierarch# of civil liberties, the ri!hts of free e$pression and of asse"bl# occup# a preferredposition as the# are essential to the preservation and vitalit# of our civil and political institutions andsuch priorit# 9!ives these liberties the sanctit# and the sanction not per"ittin! dubiousintrusions.9/G1 )Citations o"itted+

&his pri"ordial ri!ht calls for ut"ost respect, "ore so 9%hen %hat "a# be curtailed is thedisse"ination of infor"ation to "a(e "ore "eanin!ful the eHuall# vital ri!ht of suffra!e.9/G0 A si"ilaridea appeared in our urisprudence as earl# as /G0G, %hich %as ustice Barredo2s concurrin! anddissentin! opinion in onales v. CME*EC@/G7

I li(e to reiterate over and over, for it see"s this is the funda"ental point others "iss, that !enuinede"ocrac# thrives onl# %here the po%er and ri!ht of the people toelect the "en to %ho" the# %ouldentrust the privile!e to run the affairs of the state e$ist. In the lan!ua!e of the declaration ofprinciples of our Constitution, 9&he Philippines is a republican state. Soverei!nt# resides in thepeople and all !overn"ent authorit# e"anates fro" the"9 )Section /, Article II+. &ranslatin! thisdeclaration into actualit#, the Philippines is a republic because and solel# because the people in itcan be !overned onl# b# officials %ho" the# the"selves have placed in office b# their votes. And init is on this cornerstone that I hold it tobe self>evident that %hen the freedo"s of speech, press andpeaceful asse"bl# and redress of !rievances are bein! e$ercised in relation to suffra!e or asa"eans to eno# the inalienable ri!ht of the Hualified citien to vote, the# are absolute and ti"eless. Ifour de"ocrac# and republicanis" are to be %orth%hile, the conduct of public affairs b# our officials

"ust be allo%ed to suffer incessant and unabatin! scrutin#, favorable or unfavorable, ever#da# andat all ti"es. Ever# holder of po%er in our !overn"ent "ust be read# to under!o e$posure an#"o"ent of the da# or ni!ht, fro" anuar# to Dece"ber ever# #ear, as it is onl# in this %a# that hecan ri!htfull# !ain the confidence of the people. I have no patience for those %ho %ould re!ardpublic dissection of the establish"ent as an attribute to be indul!ed b# the people onl# at certainperiods of ti"e. I consider the freedo"s of speech, press and peaceful asse"bl# and redress of!rievances, %hen e$ercised in the na"e of suffra!e, as the ver# "eans b# %hich the ri!ht itself tovote can onl# be properl# eno#ed.It stands to reason therefore, that suffra!e itself %ould be ne$t to

























useless if these liberties cannot be untra""elled sic %hether as to de!ree or ti"e. /GF )E"phasissupplied+

Not all speech are treated the sa"e. In Chave v. onales, this court discussed that so"e t#pes ofspeech "a# be subect to re!ulation@

So"e t#pes of speech "a# be subected to so"e re!ulation b# the State under its pervasive policepo%er, in order that it "a# not be inurious to the eHual ri!ht of others or those of the co""unit# orsociet#. &he difference in treat"ent is e$pected because the relevant interests of one t#pe ofspeech, e.!., political speech, "a# var# fro" those of another, e.!., obscene speech.Distinctionshave therefore been "ade in the treat"ent, anal#sis, and evaluation ofthe per"issiblescope of restrictions on various cate!ories of speech. 'e have ruled, for e$a"ple, that in our

urisdiction slander or libel, le%d and obscene speech, as %ell as 9fi!htin! %ords9 are not entitled toconstitutional protection and "a# be penalied. /GG )Citations o"itted+

'e distin!uish bet%een politicaland co""ercial speech. Political speech refers to speech 9bothintended and received as a contribution to public deliberation about so"e issue,9355 9fosterin!infor"ed and civic"inded deliberation.935/ n the other hand, co""ercial speech has been defined

as speech that does 9no "ore than propose a co""ercial transaction.9353

&he e$pression resultin!fro" the content of the tarpaulin is, ho%ever, definitel# political speech. In ustice Brion2s dissentin!opinion, he discussed that 9the content of the tarpaulin, as %ell as the ti"in! of its postin!, "a(es itsubect of the re!ulations in RA G550 and Co"elec Resolution No. G0/1.9356 ;e adds that 9%hileindeed the R; issue, b# itself,is not an electoral"atter, the slant that the petitioners !ave the issueconverted the non>election issue into a live election one hence, &ea" Buha# and &ea" Pata# andthe plea to support one and oppose the other.935<

'hile the tarpaulin "a# influence the success or failure of the na"ed candidates and politicalparties, this does not necessaril# "ean it is election propa!anda. &he tarpaulin %as not paid for orposted 9in return for consideration9 b# an# candidate, political part#, or part#>list !roup.

&he second para!raph of Section /)<+ of CME*EC Resolution No. G0/1, or the rules andre!ulations i"ple"entin! Republic Act No. G550 as an aid to interpret the la% insofar as the facts ofthis case reHuires, states@

<. &he ter" 9political advertise"ent9 or 9election propa!anda9 refers to an# "atter broadcasted,published, printed, displa#ed or e$hibited, in an# "ediu", %hich contain the na"e, i"a!e, lo!o,brand, insi!nia, color "otif, initials, and other s#"bol or !raphic representation that is capable ofbein! associated %ith a candidate or part#, and is intended to dra% the attention of the public or ase!"ent thereof to pro"ote or oppose, directl# or indirectl#, the election of the said candidate orcandidates to a public office. In broadcast "edia, political advertise"ents "a# ta(e the for" ofspots, appearances on &= sho%s and radio pro!ra"s, live or taped announce"ents, teasers, andother for"s of advertisin! "essa!es or announce"ents used b# co""ercial advertisers. Politicaladvertisin! includes "atters, not fallin! %ithin the scope of personal opinion, that appear on an#

Internet %ebsite, includin!, but not li"ited to, social net%or(s, blo!!in! sites, and "icro>blo!!in!sites, in return for consideration, or other%ise capable of pecuniar# esti"ation. )E"phasis supplied+

It is clear that this para!raph su!!ests that personal opinions are not included, %hile sponsored"essa!es are covered.

&hus, the last para!raph of Section /)/+ of CME*EC Resolution No. G0/1 states@

SEC&IN /. Definitions > As used in this Resolution@



















/. &he ter" 9election ca"pai!n9 or 9partisan political activit#9 refers to an act desi!ned to pro"otethe election or defeat of a particular candidate or candidates to a public office, and shall include an#of the follo%in!@

. . . .

Personal opinions, vie%s, and preferences for candidates, contained in blo!s shall not be consideredacts of election ca"pai!nin! or partisan politicalactivit# unless e$pressed b# !overn"ent officials inthe E$ecutive Depart"ent, the *e!islative Depart"ent, the udiciar#, the ConstitutionalCo""issions, and "e"bers of the Civil Service.

In an# event, this case does not refer to speech in c#berspace, and its effects and para"etersshould be dee"ed narro%l# tailored onl# in relation to the facts and issues in this case. It alsoappears that such %ordin! in CME*EC Resolution No. G0/1 does not si"ilarl# appear in Republic

Act No. G550, the la% it i"ple"ents.

'e should interpret in this "anner because of the value of political speech.

As earl# as /G/F, in :nited States v. Bustos,351 this court reco!nied the need for full discussion ofpublic affairs. 'e ac(no%led!ed that free speech includes the ri!ht to criticie the conduct of public"en@

&he interest of societ# and the "aintenance of !ood !overn"ent de"and a full discussion of publicaffairs. Co"plete libert# to co""ent on the conduct of public "en is a scalpel in the case of freespeech. &he sharp incision of its probe relieves the abscesses of official do". Men in public life "a#suffer under a hostile and an unust accusation the %ound can be assua!ed %ith the bal" of a clear conscience. A public officer "ust not be too thin>s(inned %ith reference to co""ent upon his officialacts. nl# thus can the intelli!ence and di!nit# of the individual be e$alted.350

SubseHuent urisprudence developed the ri!ht to petition the !overn"ent for redress of !rievances,

allo%in! for criticis", save for so"e e$ceptions.357

In the /G1/ case of Espuelas v. People,35F

thiscourt noted ever# citien2s privile!e to criticie his or her !overn"ent, provided it is 9specific andtherefore constructive, reasoned or te"pered, and not a conte"ptuous conde"nation of the entire!overn"ent set>up.935G

&he /G37 case of People v. &itular 3/5 involved an alle!ed violation of the Election *a% provision9penaliin! the anon#"ous criticis" of a candidate b# "eans of posters or circulars.93// &his courte$plained that it is the poster2s anon#"ous character that is bein! penalied. 3/3 &he ponente addsthat he %ould 9disli(e ver# "uchto see this decision "ade the vehicle for the suppression of publicopinion.93/6

In /GF6, Re#es v. Ba!atsin!3/< discussed the i"portance of allo%in! individuals to vent their vie%s. Accordin! to this court, 9its value "a# lie in the fact that there "a# be so"ethin! %orth hearin!fro" the dissenter and that is to ensurea true fer"ent of ideas.93/1

Allo%in! citiens to air !rievances and spea( constructive criticis"s a!ainst their !overn"entcontributes to ever# societ#2s !oal for develop"ent. It puts for%ard "atters that "a# be chan!ed forthe better and ideas that "a# be deliberated on to attain that purpose. Necessaril#, it also "a(es the!overn"ent accountable for acts that violate constitutionall# protected ri!hts.





























In /GGF, s"ea v. CME*EC found Section //)b+ of Republic Act No. 00<0, %hich prohibits "ass"edia fro" sellin! print space and air ti"e for ca"pai!n e$cept to the CME*EC, to be ade"ocrac#>enhancin! "easure.3/0&his court "entioned ho% 9discussion of public issues and debateon the Hualifications of candidates in an election are essential to the proper functionin! of the!overn"ent established b# our Constitution.93/7

As pointed out b# petitioners, 9speech serves one of its !reatest public purposes in the conte$t ofelections %hen the free e$ercise thereof infor"s the people %hat the issues are, and %ho aresupportin! %hat issues.93/F At the heart of de"ocrac# is ever# advocate2s ri!ht to "a(e (no%n %hatthe people need to (no%,3/G %hile the "eanin!ful e$ercise of one2s ri!ht of suffra!e includes the ri!htof ever# voter to (no% %hat the# need to (no% in order to "a(e their choice.

&hus, in Adion! v. CME*EC,335 this court discussed the i"portance of debate on public issues, andthe freedo" of e$pression especiall# in relation to infor"ation that ensures the "eanin!ful e$erciseof the ri!ht of suffra!e@

'e have adopted the principle that debate on public issues should be uninhibited, robust, and %ideopen and that it "a# %ell include vehe"ent, caustic and so"eti"es unpleasantl# sharp attac(s on

!overn"ent and public officials. &oo "an# restrictions %ill den# to people the robust, uninhibited, and%ide open debate, the !eneratin! of interest essential if our elections %ill trul# be free, clean andhonest.

'e have also ruled that the preferred freedo" of e$pression calls all the "ore for the ut"ost respect%hen %hat "a# be curtailed is the disse"ination of infor"ation to "a(e "ore "eanin!ful the eHuall#vital ri!ht of suffra!e.33/)E"phasis supplied, citations o"itted+

Speech %ith political conseHuences isat the core of the freedo" of e$pression and "ust beprotected b# this court.

ustice Brion pointed out that freedo"of e$pression 9is not the !od of ri!hts to %hich all other ri!hts

and even !overn"ent protection of state interest "ust bo%.9

333

&he ri!ht to freedo" of e$pression isindeed not absolute. Even so"e for"s of protected speech arestill subectto so"e restrictions. &he de!ree of restriction "a# depend on %hether the re!ulation iscontent>based or content>neutral.336 Content>based re!ulations can either be based on the vie%pointof the spea(er or the subect of the e$pression.

II.B.0

Content>based re!ulation

CME*EC contends that the order for re"oval of the tarpaulin is a content>neutral re!ulation. &he

order %as "ade si"pl# because petitioners failed to co"pl# %ith the "a$i"u" sie li"itation forla%ful election propa!anda.33<

n the other hand, petitioners ar!ue that the present sie re!ulation is content>based as it appliesonl# to political speech and not to other for"s of speech such as co""ercial speech.331 9Assu"in!ar!uendo that the sie restriction sou!ht to be applied . . . is a "ere ti"e, place, and "annerre!ulation, it2s still unconstitutional for lac( of a clear and reasonable ne$us %ith a constitutionall#sanctioned obective.9330



























&he re!ulation "a# reasonabl# be considered as either content>neutral or content>based.337 Re!ardless, the disposition of this case %ill be the sa"e. enerall#, co"pared %ith otherfor"s of speech, the proposed speech is content>based.

As pointed out b# petitioners, the interpretation of CME*EC contained in the Huestioned orderapplies onl# to posters and tarpaulins that "a# affect the elections because the# deliver opinions

that shape both their choices. It does not cover, for instance, co""ercial speech.

'orse, CME*EC does not point to a definite vie% of %hat (ind of e$pression of non>candidates %illbe adud!ed as 9election paraphernalia.9 &here are no e$istin! bri!ht lines to cate!orie speech aselection>related and those that are not. &his is especiall# true %hen citiens %ill %ant to use theirresources to be able to raise public issues that should be tac(led b# the candidates as %hat hashappened in this case. CME*EC2s discretion to li"it speech in this case is funda"entall#unbridled.

Sie li"itations durin! elections hit ata core part of e$pression. &he content of the tarpaulin is noteasil# divorced fro" the sie of its "ediu".

Content>based re!ulation bears a heav# presu"ption of invalidit#, and this court has used the clearand present dan!er rule as "easure.33F &hus, in Chave v. onales@

A content>based re!ulation, ho%ever, bears a heav# presu"ption of invalidit# and is "easureda!ainst the clear and present dan!er rule. &he latter %ill pass constitutional "uster onl# if ustified b#a co"pellin! reason, and the restrictions i"posedare neither overbroad nor va!ue.33G )Citationso"itted+

:nder this rule, 9the evil conseHuences sou!ht to be prevented "ust be substantive, e$tre"el#serious and the de!ree of i""inence e$tre"el# hi!h.29365 9nl# %hen the challen!ed act hasoverco"e the clear and present dan!er rule %ill it pass constitutional "uster, %ith the !overn"enthavin! the burden of overco"in! the presu"ed unconstitutionalit#.936/

Even %ith the clear and present dan!er test, respondents failed to ustif# the re!ulation. &here is noco"pellin! and substantial state interest endan!ered b# the postin! of the tarpaulinas to ustif#curtail"ent of the ri!ht of freedo" of e$pression. &here is no reason for the state to "ini"ie theri!ht of non>candidate petitioners to post the tarpaulin in their private propert#. &he sie of thetarpaulin does not affect an#one else2s constitutional ri!hts.

Content>based restraint or censorship refers to restrictions 9based on the subect "atter of theutterance or speech.9363 In contrast, content>neutral re!ulation includes controls "erel# on theincidents of the speech such as ti"e, place, or "anner of the speech. 366

&his court has atte"pted to define 9content>neutral9 restraints startin! %ith the /G<F case ofPri"icias v. 4u!oso.36< &he ordinance in this case %as construed to !rant the Ma#or discretion onl# todeter"ine the public places that "a# be used for the procession or"eetin!, but not the po%er torefuse the issuance of a per"it for such procession or "eetin!.361 &his court e$plained that freespeech and peaceful asse"bl# are 9not absolute for it "a# be so re!ulated that it shall notbeinurious to the eHual eno#"ent of others havin! eHual ri!hts, nor inurious to the ri!hts of theco""unit# or societ#.9360

&he earlier case of Calalan! v. 'illia"s367 involved the National &raffic Co""ission resolution thatprohibited the passin! of ani"al>dra%n vehicles alon! certain roads at specific hours. 36F &his court































si"ilarl# discussed police po%er in that the assailed rules carr# outthe le!islative polic# that 9ai"s topro"ote safe transit upon and avoid obstructions on national roads, in the interest and convenienceof the public.936G

As earl# as /G57, :nited States v. Apurado3<5 reco!nied that 9"ore or less disorder %ill "ar( thepublic asse"bl# of the people to protest a!ainst !rievances %hether real or i"a!inar#, because on

such occasions feelin! is al%a#s %rou!ht to a hi!h pitch of e$cite"ent. . . .93</ It is %ith this bac(dropthat the state is ustified in i"posin! restrictions on incidental "atters as ti"e, place, and "anner ofthe speech.

In the land"ar( case of Re#es v. Ba!atsin!, this court su""aried the steps that per"it applicants"ust follo% %hich include infor"in! the licensin! authorit# ahead of ti"e as re!ards the date, publicplace, and ti"e of the asse"bl#.3<3 &his %ould afford the public official ti"e to infor" applicants ifthere %ould be valid obections, provided that the clear and present dan!er test is the standard usedfor his decision and the applicants are !iven the opportunit# to be heard.3<6 &his rulin! %as practicall#codified in Batas Pa"bansa No. FF5, other%ise (no%n as the Public Asse"bl# Act of /GF1.

SubseHuent urisprudence have upheld Batas Pa"bansa No. FF5 as a valid content>neutral

re!ulation. In the 3550 case of Ba#an v. Er"ita,3<<

this court discussed ho% Batas Pa"bansa No. FF5does not prohibit asse"blies but si"pl# re!ulates their ti"e, place, and "anner.3<1 In 35/5, this courtfound in Inte!rated Bar of the Philippines v. Atiena3<0 that respondent Ma#or Atiena co""itted!rave abuse of discretion %hen he "odified the rall# per"it b# chan!in! the venue fro" MendiolaBrid!e to Plaa Miranda %ithout first affordin! petitioners the opportunit# to be heard.3<7

'e reiterate that the re!ulation involved at bar is content>based. &he tarpaulin content is not easil#divorced fro" the sie of its "ediu".

II.B.7

ustice Carpio and ustice Perlas>Bernabe su!!est that the provisions i"posin! a sie li"it for

tarpaulins are content>neutral re!ulations as these 9restrict the "annerb# %hich speech is rela#edbut not the content of %hat is conve#ed.93<F

If %e appl# the test for content>neutral re!ulation, the Huestioned acts of CME*EC %ill not pass thethree reHuire"ents for evaluatin! such restraints on freedo" of speech. 3<G 9'hen the speechrestraints ta(e the for" of a content>neutral re!ulation, onl# a substantial !overn"ental interest isreHuired for its validit#,9315 and it is subect onl# to the inter"ediate approach.31/

&his inter"ediate approach is based on the test that %e have prescribed in several cases.313 Acontent>neutral !overn"ent re!ulation is sufficientl# ustified@

/ if it is %ithin the constitutional po%er of the overn"ent 3 if it furthers an i"portant orsubstantial !overn"ental interest 6 if the !overn"ental interest is unrelated to the suppression offree e$pression and < if the incident restriction on alle!ed freedo" of speech e$pression is no!reater than is essential to the furtherance of that interest.316

n the first reHuisite, it is not %ithin the constitutional po%ers of the CME*EC to re!ulate thetarpaulin. As discussed earlier, this is protected speech b# petitioners %ho are non>candidates. nthe second reHuire"ent, not onl# "ust the !overn"ental interest be i"portant or substantial, it "ustalso be co"pellin! as to ustif# the restrictions "ade.



































Co"pellin! !overn"ental interest %ould include constitutionall# declared principles. 'e have held,for e$a"ple, that 9the %elfare of children and the State2s "andate to protect and care for the", asparens patriae,31< constitute a substantial and co"pellin! !overn"ent interest in re!ulatin! . . .utterances in &= broadcast.9311

Respondent invo(es its constitutional "andate to ensure eHual opportunit# for public infor"ation

ca"pai!ns a"on! candidates in connection %ith the holdin! of a free, orderl#, honest, peaceful, andcredible election.310

ustice Brion in his dissentin! opinion discussed that 9sie li"its to posters are necessar# to ensureeHualit# of public infor"ation ca"pai!ns a"on! candidates, as allo%in! posters %ith different sies!ives candidates and their supporters the incentive to post lar!er posters, and this placescandidates %ith "ore "one# andKor %ith deep>poc(et supporters at an undue advanta!e a!ainstcandidates %ith "ore hu"ble financial capabilities.9 317

4irst, Adion! v. CME*EC has held that this interest is 9not as i"portant as the ri!ht of a privatecitien to freel# e$press his choice and e$ercise his ri!ht of free speech.931F In an# case, faced %ithboth ri!hts to freedo" of speech and eHualit#, a prudent course %ould be to 9tr# to resolve the

tension in a %a# that protects the ri!ht of participation.931G

Second, the pertinent election la%srelated to private propert# onl# reHuire that the private propert#o%ner2s consent be obtained %hen postin! election propa!anda in the propert#.305 &his is consistent%ith the funda"ental ri!ht a!ainst deprivation of propert# %ithout due process of la%.30/ &he presentfacts do not involve such postin! of election propa!anda absent consent fro" the propert# o%ner.&hus, this re!ulation does not appl# in this case.

Respondents li(e%ise cite the Constitution303 on their authorit# to reco""end effective "easures to"ini"ie election spendin!. Specificall#, Article I?>C, Section 3)7+ provides@


. . . .

)7+ Reco""end to the Con!ress effective "easures to "ini"ie election spendin!, includin!li"itation of places %here propa!anda "aterials shall be posted, and to prevent and penalie allfor"s of election frauds, offenses, "alpractices, and nuisance candidates. )E"phasis supplied+ &hisdoes not Hualif# as a co"pellin! and substantial !overn"ent interest to ustif# re!ulation of thepreferred ri!ht to freedo" of e$pression.

&he assailed issuances for the re"oval of the tarpaulin are based on the t%o feet )32+ b# three feet)62+ sie li"itation under Section 0)c+ of CME*EC Resolution No. G0/1. &his resolution i"ple"entsthe 4air Election Act that provides for the sa"e sie li"itation.306

&his court held in Adion! v. CME*EC that 9co"pared to the para"ount interest of the State in!uaranteein! freedo" of e$pression, an# financial considerations behind the re!ulation are of"ar!inal si!nificance.930< In fact, speech %ith political conseHuences, as in this case, should beencoura!ed and not curtailed. As petitioners pointed out, the sie li"itation %ill not serve theobective of "ini"iin! election spendin! considerin! there is no li"it on the nu"ber of tarpaulinsthat "a# be posted.301






























&he third reHuisite is li(e%ise lac(in!. 'e loo( not onl# at the le!islative intent or "otive in i"posin!the restriction, but "ore so at the effects of such restriction, if i"ple"ented. &he restriction "ust notbe narro%l# tailored to achieve the purpose. It "ust be de"onstrable. It "ust allo% alternativeavenues for the actor to "a(e speech.

In this case, the sie re!ulation is not unrelated to the suppression of speech. *i"itin! the "a$i"u"

sieof the tarpaulin %ould render ineffective petitioners2 "essa!e and violate their ri!ht to e$ercisefreedo" of e$pression.

&he CME*EC2s act of reHuirin! the re"oval of the tarpaulin has the effect of dissuadin!e$pressions %ith political conseHuences. &hese should be encoura!ed, "ore so %hen e$ercised to"a(e "ore "eanin!ful the eHuall# i"portant ri!ht to suffra!e.

&he restriction in the present case does not pass even the lo%er test of inter"ediate scrutin# forcontent>neutral re!ulations.

&he action of the CME*EC in thiscase is a stron! deterrent to further speech b# the electorate.iven the stature of petitioners and their "essa!e, there are indicators that this %ill cause a 9chillin!

effect9 on robust discussion durin! elections.

&he for" of e$pression is ust as i"portant as the "essa!e itself. In the %ords of Marshall Mc*uhan,9the "ediu" is the "essa!e.9300 Mc*uhan2s collea!ue and "entor ;arold Innis has earlier assertedthat 9the "aterials on %hich %ords %ere %ritten do%n have often counted for "ore than the %ordsthe"selves.9307

III4reedo" of e$pression and eHualit#

III.A

&he possibilit# of abuse

f course, candidates and political parties do solicit the help of private individuals for theendorse"ent of their electoral ca"pai!ns.

n the one e$tre"e, this can ta(e illicit for"s such as %hen endorse"ent "aterials in the for" oftarpaulins, posters, or "edia advertise"ents are "ade ostensibl# b# 9friends9 but in realit# are reall#paid for b# the candidate or political part#. &his s(irts the constitutional value that provides for eHualopportunities for all candidates.

;o%ever, as a!reed b# the parties durin! the oral ar!u"ents in this case, this is not the situation thatconfronts us. In such cases, it %ill si"pl# be a "atter for investi!ation and proof of fraud on the part

of the CME*EC.

&he !uarantee of freedo" of e$pression to individuals %ithout an# relationship to an# politicalcandidate should not be held hosta!e b# the possibilit# of abuse b# those see(in! to be elected. It istrue that there can be underhanded, covert, or illicit dealin!s so as to hide the candidate2s real levelsof e$penditures. ;o%ever, labellin! all e$pressions of private parties that tend to have an effect onthe debate in the elections as election paraphernalia %ould be too broad a re"ed# that can stifle!enuine speech li(e in this case. Instead, to address this evil, better and "ore effective enforce"ent%ill be the least restrictive "eans to the funda"ental freedo".







n the other e$tre"e, "oved b# the credentials and the "essa!e of a candidate, others %ill spendtheir o%n resources in order to lend support for the ca"pai!ns. &his "a# be %ithout a!ree"entbet%een the spea(er and the candidate or his or her political part#. In lieu of donatin! funds to theca"pai!n, the# %ill instead use their resources directl# in a %a# that the candidate or political part#%ould have doneso. &his "a# effectivel# s(irt the constitutional and statutor# li"its of ca"pai!nspendin!.

A!ain, this is not the situation in this case.

&he "essa!e of petitioners in thiscase %ill certainl# not be %hat candidates and political parties %illcarr# in their election posters or "edia ads. &he "essa!e of petitioner, ta(en as a %hole, is anadvocac# of a social issue that it deepl# believes. &hrou!h rhetorical devices, it co""unicates thedesire of Diocese that the positions of those %ho run for a political position on this social issue bedeter"inative of ho% the public %ill vote. It pri"aril# advocates a stand on a social issue onl#secondaril# - even al"ost incidentall# - %ill cause the election or non>election of a candidate.

&he t%in tarpaulins consist of satire of political parties. Satire is a 9literar# for" that e"plo#s suchdevices as sarcas", iron# and ridicule to deride prevailin! vices or follies,9 30F and this "a# tar!et an#

individual or !roup in societ#, private and !overn"ent ali(e. It see(s to effectivel# co""unicate a!reater purpose, often used for 9political and social criticis"930G 9because it tears do%n facades,deflates stuffed shirts, and un"as(s h#pocris#. . . . Nothin! is "ore thorou!hl# de"ocratic than tohave the hi!h>and>"i!ht# la"pooned and spoofed.9 375 Northrop 4r#e, %ell(no%n in this literar# field,clai"ed that satire had t%o definin! features@ 9one is %it or hu"or founded on fantas# or a sense ofthe !rotesHue and absurd, the other is an obect of attac(.937/ &hus, satire freHuentl# usese$a!!eration, analo!#, and other rhetorical devices.

&he tarpaulins e$a!!erate. Surel#, 9&ea" Pata#9 does not refer to a list of dead individuals nor couldthe Archbishop of the Diocese of Bacolod have intended it to "ean that the entire plan of thecandidates in his list %as to cause death intentionall#. &he tarpaulin caricatures political parties andparodies the intention of those in the list. 4urther"ore, the list of 9&ea" Pata#9 is u$taposed %ith thelist of 9&ea" Buha#9 that further e"phasies the the"e of its author@ Reproductive health is an

i"portant "ar(er for the church of petitioners to endorse.

&he "essa!es in the tarpaulins are different fro" the usual "essa!es of candidates. Electionparaphernalia fro" candidates and political parties are "ore declarative and descriptive and containno sophisticated literar# allusion to an# social obective. &hus, the# usuall# si"pl# e$hort the publicto vote for a person %ith a brief description of the attributes of the candidate. 4or e$a"ple 9=ote for$, Sipa! at &i#a!a,9 9=ote for #, Mr. Palen!(e,9 or 9=ote for , Iba (a"i sa Ma(ati.9

&his court2s construction of the !uarantee of freedo" of e$pression has al%a#s been %ar# ofcensorship or subseHuent punish"ent that entails evaluation of the spea(er2s vie%point or thecontent of one2s speech. &his is especiall# true %hen the e$pression involved has politicalconseHuences. In this case, it hopes to affect the t#pe of deliberation that happens durin! elections.

A beco"in! hu"ilit# on the part of an# hu"an institution no "atter ho% endo%ed %ith the secularabilit# to decide le!al controversies %ith finalit# entails that %e are not the (eepers of all %isdo".

;u"anit#2s lac( of o"niscience, even actin! collectivel#, provides space for the %ea(est dissent.&olerance has al%a#s been a libertarian virtue %hose version is e"bedded in our Billof Ri!hts. &hereare occasional heretics of #esterda# that have beco"e our visionaries. ;eterodo$ies have al%a#s!iven us pause. &he unfor!ivin! but insistent nuance that the "aorit# surel# and co"fortabl#disre!ards provides us %ith the chec(s upon realit# that "a# soon evolve into creative solutions to













!rave social proble"s. &his is the utilitarian version. It could also be that it is ust part of hu"annecessit# to evolve throu!h bein! able to e$press or co""unicate.

;o%ever, the Constitution %e interpret is not a theoretical docu"ent. It contains other provisions%hich, ta(en to!ether %ith the !uarantee of free e$pression, enhances each other2s value. A"on!these are the provisions that ac(no%led!e the idea of eHualit#. In shapin! doctrine construin! these

constitutional values, this court needs to e$ercise e$traordinar# prudence and produce narro%l#tailored !uidance fit to the facts as !iven so as not to un%ittin!l# cause the undesired effect ofdilutin! freedo"s as e$ercised in realit# and, thus, render the" "eanin!less.

III.B.

Speech and eHualit#@

So"e considerations 'e first establish that there are t%o paradi!"s of free speech that separate atthe point of !ivin! priorit# to eHualit# vis>>vis libert#.373

In an eHualit#>based approach, 9politicall# disadvanta!ed speech prevails over re!ulation, but

re!ulation pro"otin! political eHualit# prevails over speech.9376 &his vie% allo%s the !overn"entlee%a# to redistribute or eHualie spea(in! po%er,2 such as protectin!, even i"plicitl# subsidiin!,unpopular or dissentin! voices often s#ste"aticall# subdued %ithin societ#2s ideolo!icalladder .37< &his vie% ac(no%led!es that there are do"inant political actors %ho, throu!h authorit#,po%er, resources, identit#, or status, have capabilities that "a# dro%n out the "essa!es of others.&his is especiall# true in a developin! or e"er!in! econo"# that is part of the "aoritarian %orld li(eours.

&he Huestion of libertarian tolerance

&his balance bet%een eHualit# and the abilit# to e$press so as to find one2s authentic self or toparticipate in the self deter"ination of one2s co""unities is not ne% onl# to la%. It has al%a#s been

a philosophical proble"atiHue.

In his se"inal %or(, Repressive &olerance, philosopher and social theorist ;erbert Marcusereco!nied ho% institutionalied ineHualit# e$ists as a bac(!round li"itation, renderin! freedo"se$ercised %ithin such li"itation as "erel# 9protectin! the alread# established "achiner# ofdiscri"ination.9371 In his vie%, an# i"prove"ent 9in the nor"al course of events9 %ithin an uneHualsociet#, %ithout subversion, onl# stren!thens e$istin! interests of those in po%er and control.370

In other %ords, abstract !uarantees of funda"ental ri!hts li(e freedo" of e$pression "a# beco"e"eanin!less if not ta(en in a real conte$t. &his tendenc# to tac(le ri!hts in the abstract co"pro"isesliberties. In his %ords@

*ibert# is self>deter"ination, autono"#-this is al"ost a tautolo!#, but a tautolo!# %hich results fro"a %hole series of s#nthetic ud!"ents. It stipulates the abilit# to deter"ine one2s o%n life@ to be ableto deter"ine %hat to do and %hat not to do, %hat to suffer and %hat not. But the subect of thisautono"# is never the contin!ent, private individual as that %hich he actuall# is or happens to be itis rather the individual as a hu"an bein! %ho is capable of bein! free %ith the others. And theproble" of "a(in! possible such a har"on# bet%een ever# individual libert# and the other is not thatof findin! a co"pro"ise bet%een co"petitors, or bet%een freedo" and la%, bet%een !eneral andindividual interest, co""on and private %elfare in an established societ#, but of creatin! the societ#in %hich "an is no lon!er enslaved b# institutions %hich vitiate self>deter"ination fro" the















be!innin!. In other %ords, freedo" is still to be created even for the freest of the e$istin!societies.377 )E"phasis in the ori!inal+

Marcuse su!!ests that the de"ocratic ar!u"ent - %ith all opinions presented to and deliberated b#the people - 9i"plies a necessar# condition, na"el#, that the people "ust be capable ofdeliberatin! and choosin! on the basis of (no%led!e, that the# "ust have access to authentic

infor"ation, and that, on this basis, their evaluation "ust be the result of autono"ous thou!ht.9 37F ;esub"its that 9different opinions and philosophies2 can no lon!er co"pete peacefull# for adherenceand persuasion on rational !rounds@ the "ar(etplace of ideas2 is or!anied and deli"ited b# those%ho deter"ine the national and the individual interest.937G A slant to%ard left "anifests fro" his beliefthat 9there is a natural ri!ht2 of resistance for oppressed and overpo%ered "inorities to usee$trale!al "eans if the le!al ones have proved to be inadeHuate.93F5 Marcuse, thus, stands for aneHualit# that brea(s a%a# and transcends fro" established hierarchies, po%er structures, andindoctrinations. &he tolerance of libertarian societ# he refers to as 9repressive tolerance.9

*e!al scholars

&he 35th centur# also bears %itness to stron! support fro" le!al scholars for 9strin!ent protections

of e$pressive libert#,93F/

especiall# b# political e!alitarians. Considerations such as 9e$pressive,deliberative, and infor"ational interests,93F3 costs or the price of e$pression, and bac(!round facts,%hen ta(en to!ether, produce bases for a s#ste" of strin!ent protections for e$pressive liberties. 3F6

Man# le!al scholars discuss the interest and value of e$pressive liberties. ustice Brandeis proposedthat 9public discussion is a political dut#.93F< Cass Sustein placed political speech on the upper tier ofhis t%otier "odel for freedo" of e$pression, thus, %arrantin! strin!ent protection. 3F1 ;e definedpolitical speech as 9both intended and received as a contribution to public deliberation about so"eissue.93F0

But this is usuall# related also tofair access to opportunities for such liberties. 3F7 4air access toopportunit# is su!!ested to "ean substantive eHualit# and not "ere for"al eHualit#since 9favorableconditions for realiin! the e$pressive interest %ill include so"e assurance of the resources reHuiredfor e$pression and so"e !uarantee that efforts to e$press vie%s on "atters of co""on concern %illnot be dro%ned out b# the speech of betterendo%ed citiens.93FF ustice Brandeis2 solution is to9re"ed# the har"s of speech %ith "ore speech.9 3FG &his vie% "oves a%a# fro" pla#in! do%n thedan!er as "erel# e$a!!erated, to%ard 9ta(in! the costs seriousl# and e"bracin! e$pression asthe preferred strate!# for addressin! the".93G5 ;o%ever, in so"e cases, the idea of "ore speech "a#not be enou!h. Professor *aurence &ribe observed the need for conte$t and 9the specification ofsubstantive values before eHualit# has full "eanin!.9 3G/ Professor Catherine A. Macinnon adds that9eHualit# continues to be vie%ed in a for"al rather than a substantive sense.9 3G3 &hus, "ore speechcan onl# "ean "ore speech fro" the fe% %ho are do"inant rather than those %ho are not.

ur urisprudence

&his court has tac(led these issues.

s"ea v. CME*EC affir"ed National Press Club v. CME*EC on the validit# of Section //)b+ofthe Electoral Refor"s *a% of /GF7.3G6 &his section 9prohibits "ass "edia fro" sellin! or !ivin! freeof char!e print space or air ti"e for ca"pai!n or other political purposes, e$cept to the Co""issionon Elections.93G< &his court e$plained that this provision onl# re!ulates the ti"e and "anner ofadvertisin! in order to ensure "edia eHualit# a"on! candidates.3G1 &his court !rounded this "easureon constitutional provisions "andatin! political eHualit#@ 3G0 Article I?>C, Section <














































Section <. &he Co""ission "a#, durin! the election period, supervise or re!ulate the eno#"ent orutiliation of all franchises or per"its for the operation of transportation and other public utilities,"edia of co""unication or infor"ation, all !rants, special privile!es, or concessions !ranted b# theovern"ent or an# subdivision, a!enc#, or instru"entalit# thereof, includin! an# !overn"ent>o%nedor controlled corporation or its subsidiar#. Such supervision or re!ulation shall ai" to ensure eHualopportunit#, ti"e, and space, and the ri!ht to repl#, includin! reasonable, eHual rates therefor, for

public infor"ation ca"pai!ns and foru"s a"on! candidates in connection %ith the obective ofholdin! free, orderl#, honest, peaceful, and credible elections. )E"phasis supplied+

Article ?III, Section /

Section /. &he Con!ress shall !ive hi!hest priorit#to the enact"ent of "easures that protect andenhance the ri!ht of all the people to hu"an di!nit#, reducesocial, econo"ic, and politicalineHualities, and re"ove cultural ineHuities b# eHuitabl# diffusin! %ealth and political po%er for theco""on !ood.

&o this end, the State shall re!ulate the acHuisition, o%nership, use, and disposition of propert# andits incre"ents. )E"phasis supplied+

Article II, Section 30

Section 30. &he State shall !uarantee eHual access to opportunities for public service, and prohibitpolitical d#nasties as "a# be defined b# la%. )E"phasis supplied+

&hus, in these cases, %e have ac(no%led!ed the Constitution2s !uarantee for "ore substantivee$pressive freedo"s that ta(e eHualit# of opportunities into consideration durin! elections.

&he other vie%

;o%ever, there is also the other vie%. &his is that considerations of eHualit# of opportunit# or eHualit#

inthe abilit# of citiens as spea(ers should not have a bearin! in free speech doctrine. :nder thisvie%, 9"e"bers of the public are trusted to "a(e their o%n individual evaluations of speech, and!overn"ent is forbidden to intervene for paternalistic or redistributive reasons . . . thus, ideas arebest left to a freel# co"petitive ideolo!ical "ar(et.93G7&his is consistent %ith the libertarian suspicionon the use of vie%point as %ell as content to evaluate the constitutional validit# or invalidit# ofspeech.

&he te$tual basis of this vie% is that the constitutional provision uses ne!ative rather than affir"ativelan!ua!e. It uses speech2 as its subect and not spea(ers2.3GF ConseHuentl#, the Constitution protectsfree speech per se, indifferent to the t#pes, status, or associations of its spea(ers.3GG Pursuant to this,9!overn"ent "ust leave spea(ers and listeners in the private order to their o%n devices in sortin!out the relative influence of speech.9655

ustice Ro"ero2s dissentin! opinion in s"ea v. CME*EC for"ulates this vie% that freedo" ofspeech includes 9not onl# the ri!ht to e$press one2s vie%s, but also other co!nate ri!hts relevant tothe free co""unication of ideas, not e$cludin! the ri!ht to be infor"ed on "atters of publicconcern.965/ She adds@

And since so "an# i"ponderables "a# affect the outco"e of elections - Hualifications of votersand candidates, education, "eans of transportation, health, public discussion, private ani"osities,the %eather, the threshold of a voter2s resistance to pressure - the ut"ost ventilation of opinion of













"en and issues, throu!h asse"bl#, association and or!aniations, both b# the candidate and thevoter, beco"es a sine Hua non for elections to trul# reflect the %ill of the electorate. 653 )E"phasissupplied+

ustice Ro"ero2s dissentin! opinion cited an A"erican case, if onl# to e"phasie free speechpri"ac# such that9courts, as a rule are %ar# to i"pose !reater restrictions as to an# atte"pt to

curtail speeches %ith political content,9656 thus@

the concept that the !overn"ent "a# restrict the speech of so"e ele"ents in our societ# in order toenhance the relative voice of the others is %holl# forei!n to the 4irst A"end"ent %hich %asdesi!ned to 9secure the %idest possible disse"ination of infor"ation fro" diverse and anta!onisticsources9 and 9to assure unfettered interchan!e of ideas for the brin!in! about of political and socialchan!es desired b# the people.965<

&his echoes ustice liver 'endell ;ol"es2 sub"ission 9that the "ar(et place of ideas is still thebest alternative to censorship.9651

Parentheticall# and ust to provide the %hole detail of the ar!u"ent, the "aorit# of the :S Supre"e

Court in the ca"pai!n e$penditures case of Buc(le# v. =aleo 9conde"ned restrictions )even ifcontent>neutral+ on e$pressive libert# i"posed in the na"e of enhancin! the relative voice ofothers2 and thereb# eHualiin! access to the political arena.9 650 &he "aorit# did not use theeHualit#>based paradi!".

ne fla% of ca"pai!n e$penditureli"its is that 9an# li"it placed on the a"ount %hich a person canspea(, %hich ta(es out of his e$clusive ud!"ent the decision of %hen enou!h is enou!h, depriveshi" of his free speech.9657

Another fla% is ho% 9an# Huantitative li"itation on political ca"pai!nin! inherentl# constricts thesu" of public infor"ation and runs counter to our profound national co""it"ent that debate onpublic issues should be uninhibited, robust, and %ide>open.2965F

In fact, 9constrainin! those %ho have funds or have been able to raise funds does not ease thepli!ht of those %ithout funds in the first place . . . and even if one2s "ain concern isslo%in! theincrease in political costs, it "a# be "ore effective torel# on "ar(et forces toachieve that result thanon active le!al intervention.965G Accordin! to ;erbert Ale$ander, 9to oppose li"itations is notnecessaril# to ar!ue that the s(#2s the li"it because in an# ca"pai!n there are saturation levelsand a point %here spendin! no lon!er pa#s off in votes per dollar.96/5

III. C.

'hen private speech a"ounts

to election paraphernalia

&he scope of the !uarantee of free e$pression ta(es into consideration the constitutional respect forhu"an potentialit# and the effect of speech. It valories the abilit# of hu"an bein!s to e$press andtheir necessit# to relate. n the other hand, a co"plete !uarantee "ust also ta(e into considerationthe effects it %ill have in a deliberative de"ocrac#. S(e%ed distribution of resources as %ell as thecultural he!e"on# of the "aorit# "a# have the effect of dro%nin! out the speech and the "essa!esof those in the "inorit#. In a sense, social ineHualit# does have its effect on the e$ercise and effect of the !uarantee of free speech. &hose %ho have "ore %ill have better access to "edia that reaches a






















%ider audience than those %ho have less. &hose %ho espouse the "ore popular ideas %ill havebetter reception than the subversive and the dissenters of societ#.&o be reall# heard and understood,the "ar!inalied vie% nor"all# under!oes its o%n de!ree of stru!!le.

&he traditional vie% has been to tolerate the vie%point of the spea(er and the content of his or here$pression. &his vie%, thus, restricts la%s or re!ulation that allo%s public officials to "a(e ud!"ents

of the value of such vie%point or "essa!e content. &his should still be the principal approach.

;o%ever, the reHuire"ents of the Constitution re!ardin! eHualit# in opportunit# "ust provide li"its toso"e e$pression durin! electoral ca"pai!ns.

&hus clearl#, re!ulation of speech in the conte$t of electoral ca"pai!ns "ade b# candidates or the"e"bers of their political parties or their political parties "a# be re!ulated as to ti"e, place, and"anner. &his is the effect of our rulin!s in s"ea v. CME*EC and National Press Club v.CME*EC.

Re!ulation of speech in the conte$t of electoral ca"pai!ns "ade b# persons %ho are not candidatesor %ho do not spea( as "e"bers of a political part# %hich are, ta(en as a %hole, principall#

advocacies of a social issue that the public "ust consider durin! elections is unconstitutional. Suchre!ulation is inconsistent %ith the !uarantee of accordin! the fullest possible ran!e of opinionsco"in! fro" the electorate includin! those that can catal#e candid, uninhibited, and robust debatein the criteria for the choice of a candidate.

&his does not "ean that there cannot be a specie of speech b# a private citien %hich %ill nota"ount toan election paraphernalia to be validl# re!ulated b# la%.

Re!ulation of election paraphernalia %ill still be constitutionall# valid if it reaches into speech ofpersons %ho are not candidates or %ho do not spea( as "e"bers of a political part# if the# are notcandidates, onl# if %hat is re!ulated is declarative speech that, ta(en as a %hole, has for its principalobect the endorse"ent of a candidate onl#. &he re!ulation )a+ should be provided b# la%, )b+

reasonable, )c+ narro%l# tailored to "eet the obective of enhancin! the opportunit# of all candidatesto be heard and considerin! the pri"ac# of the !uarantee of free e$pression, and )d+ de"onstrabl#the least restrictive "eans to achieve that obect. &he re!ulation "ust onl# be %ith respect to theti"e, place, and "anner of the rendition of the "essa!e. In no situation "a# the speech beprohibited or censored onthe basis of its content. 4or this purpose, it %ill not"atter %hether thespeech is "ade %ith or on private propert#.

&his is not the situation, ho%ever, in this case for t%o reasons. 4irst, as discussed, the principal"essa!e in the t%in tarpaulins of petitioners consists of a social advocac#.

Second, as pointed out in the concurrin! opinion of ustice Antonio Carpio, the present la% -Section 6.6 of Republic Act No. G550 and Section 0)c+ of CME*EC Resolution No. G0/1 - ifapplied to this case, %ill not pass the test of reasonabilit#. A fi$ed sie for election posters or

tarpaulins %ithout an# relation to the distance fro" the intended avera!e audience %ill be arbitrar#. At certain distances, posters "easurin! 3 b# 6 feet could no lon!er be read b# the !eneral publicand, hence, %ould render speech "eanin!less. It %ill a"ount to the abrid!e"ent of speech %ithpolitical conseHuences.

I=Ri!ht to propert#



ther than the ri!ht to freedo" of e$pression6// and the "eanin!ful e$ercise of the ri!ht tosuffra!e,6/3 the present case also involves one2s ri!ht to propert#.6/6

Respondents ar!ue that it is the ri!ht of the state to prevent the circu"vention of re!ulations relatin!to election propa!anda b# appl#in! such re!ulations to private individuals.6/< Certainl#, an# provisionor re!ulation can be circu"vented. But %e are not confronted %ith this possibilit#. Respondents

a!ree that the tarpaulin in Huestion belon!s to petitioners. Respondents have also a!reed, durin!the oral ar!u"ents, that petitioners %ere neither co""issioned nor paid b# an# candidate or politicalpart# to post the "aterial on their %alls.

Even thou!h the tarpaulin is readil# seen b# the public, the tarpaulin re"ains the private propert# ofpetitioners. &heir ri!ht to use their propert# is li(e%ise protected b# the Constitution.

In Philippine Co""unications Satellite Corporation v. Alcua@6/1

An# re!ulation, therefore, %hich operates as an effective confiscation of private propert# orconstitutes an arbitrar# or unreasonable infrin!e"ent of propert# ri!hts is void, because it isrepu!nant to the constitutional !uaranties of due process and eHual protection of the la%s. 6/0 )Citation

o"itted+

&his court in Adion! held that a restriction that re!ulates %here decals and stic(ers should be postedis 9so broad that it enco"passes even the citien2s private propert#.96/7 ConseHuentl#, it violates

Article III, Section / of the Constitution %hich provides thatno person shall be deprived of hispropert# %ithout due process of la%. &his court e$plained@

Propert# is "ore than the "ere thin! %hich a person o%ns, it includes the ri!ht to acHuire, use, anddispose of it and the Constitution, in the /<th A"end"ent, protects these essential attributes.

Propert# is "ore than the "ere thin! %hich a person o%ns. It is ele"entar# that it includes the ri!htto acHuire, use, and dispose of it. &he Constitution protects these essential attributes of propert#.

;olden v. ;ard#, /0G :.S. 600, 6G/, </ *. ed. 7F5, 7G5, /F Sup. Ct. Rep. 6F6. Propert# consists ofthe free use, eno#"ent, and disposal of a person2s acHuisitions %ithout control or di"inution saveb# the la% of the land. / Coole#2s Bl. Co". /37. )Buchanan v. 'arle# 3<1 :S 05 /G/7+6/F

&his court ruled that the re!ulation in Adion! violates private propert# ri!hts@

&he ri!ht to propert# "a# be subect to a !reater de!ree of re!ulation but %hen this ri!ht is oined b#a 9libert#9 interest, the burden of ustification on the part of the overn"ent "ust be e$ceptionall#convincin! and irrefutable. &he burden is not "et in this case.

Section // of Rep. Act 00<0 is so enco"passin! and invasive that it prohibits the postin! or displa#of election propa!anda in an# place, %hether public or private, e$cept inthe co""on poster areas

sanctioned b# CME*EC. &his "eans that a private person cannot post his o%n crudel# preparedpersonal poster on his o%n front dooror on a post in his #ard. 'hile the CME*EC %ill certainl#never reHuire the absurd, there are no li"its to %hat overealous and partisan police officers, ar"ed%ith a cop# of the statute or re!ulation, "a# do.6/G Respondents ordered petitioners, %ho are privatecitiens, to re"ove the tarpaulin fro" their o%n propert#. &he absurdit# of the situation is in itself anindication of the unconstitutionalit# of CME*EC2s interpretation of its po%ers.

4reedo" of e$pression can be inti"atel# related %ith the ri!ht to propert#. &here "a# be noe$pression %hen there is no place %here the e$pression "a# be "ade. CME*EC2s infrin!e"ent

























upon petitioners2 propert# ri!hts as in the present case also reaches out to infrin!e"ent on theirfunda"ental ri!ht to speech.

Respondents have not de"onstrated thatthe present state interest the# see( to pro"ote ustifies theintrusion into petitioners2 propert# ri!hts. Election la%s and re!ulations "ust be reasonable. It "ustalso ac(no%led!e a private individual2s ri!ht to e$ercise propert# ri!hts. ther%ise, the due process

clause %ill be violated.

CME*EC Resolution No. G0/1 and the 4air Election Act intend to prevent the postin! of electionpropa!anda in private propert# %ithout the consent of the o%ners of such private propert#.CME*EC has incorrectl# i"ple"ented these re!ulations. Consistent %ith our rulin! in Adion!, %efind that the act of respondents in see(in! to restrain petitioners fro" postin! the tarpaulin in theiro%n private propert# is an i"per"issible encroach"ents on the ri!ht to propert#.

=&arpaulin and its "essa!e are not reli!ious speech

'e proceed to the last issues pertainin! to %hether the CME*EC in issuin! the Huestioned notice

and letter violated the ri!ht of petitioners to the free e$ercise of their reli!ion.

At the outset, the Constitution "andates the separation of church and state.635 &his ta(es "an#for"s. Article III, Section 1 of the Constitution, for instance provides@

Section 1. No la% shall be "ade respectin! an establish"ent of reli!ion, or prohibitin! the freee$ercise thereof. &he free e$ercise and eno#"ent of reli!ious profession and %orship, %ithoutdiscri"ination or preference, shall forever be allo%ed. Noreli!ious test shall be reHuired for thee$ercise of civil or political ri!hts.

&here are t%o aspects of this provision. 63/ &he first is the none stablish"ent clause.633 Second is thefree e$ercise and eno#"ent of reli!ious profession and %orship.636

&he second aspect is atissue in this case.

Clearl#, not all acts done b# those %ho are priests, bishops, ustad, i"a"s, or an# other reli!ious"a(e such act i""une fro" an# secular re!ulation. 63< &he reli!ious also have a secular e$istence.&he# e$ist %ithin a societ# that is re!ulated b# la%.

&he Bishop of Bacolod caused the postin! of the tarpaulin. But not all acts of a bishop a"ounts toreli!ious e$pression. &his not%ithstandin! petitioners2 clai" that 9the vie%s and position of thepetitioners, the Bishop and the Diocese of Bacolod, on the R; Bill is ine$tricabl# connected to itsCatholic do!"a, faith, and "oral teachin!s. . . .9 631

&he difficult# that often presents itself in these cases ste"s fro" the realit# that ever# act can be"otivated b# "oral, ethical, and reli!ious considerations. In ter"s of their effect on the corporeal%orld, these acts ran!e fro" belief, to e$pressions of these faiths, to reli!ious cere"onies, and thento acts of a secular character that "a#, fro" the point of vie% of others %ho do not share the sa"efaith or "a# not subscribe to an# reli!ion, "a# not have an# reli!ious bearin!.

Definitel#, the characteriations ofthe reli!ious of their acts are not conclusive on this court. Certainl#,our po%ers of adudication cannot be blinded b# bare clai"s that acts are reli!ious in nature.


















Petitioners erroneousl# relied on the case of Ebralina! v. &he Division Superintendent of Schools ofCebu630 in clai"in! that the court 9e"phaticall#9 held that the adherents ofa particular reli!ion shall bethe ones to deter"ine %hether a particular "atter shall be considered ecclesiastical in nature. 637 &hiscourt in Ebralina!e$e"pted ehovah2s 'itnesses fro" participatin! in the fla! cere"on# 9out ofrespect for their reli!ious beliefs, no "atter ho% 9biarre9 those beliefs"a# see" to others.963F &hiscourt found a balance bet%een the assertion of a reli!ious practice and the co"pellin! necessities of

a secular co""and. It %as an earl# atte"pt at acco""odation of reli!ious beliefs.

In Estrada v. Escritor,63G this court adopted a polic# of benevolent neutralit#@

'ith reli!ion loo(ed upon %ith benevolence and not hostilit#, benevolent neutralit# allo%sacco""odation of reli!ion under certain circu"stances. Acco""odations are !overn"ent policiesthat ta(e reli!ion specificall# intoaccount not to pro"ote the !overn"ent2s favored for" of reli!ion,but to allo% individuals and !roups to e$ercise their reli!ion %ithout hindrance. &heir purpose oreffect therefore is to re"ove a burden on, or facilitate the e$ercise of, a person2s or institution2sreli!ion. As ustice Brennan e$plained, the 9!overn"ent "a# ta(e reli!ion into account . . . toe$e"pt, %hen possible, fro" !enerall# applicable !overn"ental re!ulation individuals %hosereli!ious beliefs and practices %ould other%ise thereb# be infrin!ed, or to create %ithout state

involve"ent an at"osphere in %hich voluntar# reli!ious e$ercise "a# flourish.9

665

&his court also discussed the *e"on test in that case, such that a re!ulation is constitutional %hen@)/+ it has a secular le!islative purpose )3+ it neither advances nor inhibits reli!ion and )6+ it does notfoster an e$cessive entan!le"ent %ith reli!ion.66/

As aptl# ar!ued b# CME*EC, ho%ever, the tarpaulin, on its face, 9does not conve# an# reli!iousdoctrine of the Catholic church.9663 &hat the position of the Catholic church appears to coincide %iththe "essa!e of the tarpaulin re!ardin! the R; *a% does not, b# itself, brin! the e$pression %ithinthe a"bit of reli!ious speech. n the contrar#, the tarpaulin clearl# refers to candidates classifiedunder 9&ea" Pata#9 and 9&ea" Buha#9 accordin! to their respective votes on the R; *a%.

&he sa"e "a# be said of petitioners2 reliance on papal enc#clicals to support their clai" that thee$pression onthe tarpaulin is an ecclesiastical "atter. 'ith all due respect to the Catholic faithful, thechurch doctrines relied upon b# petitioners are not bindin! upon this court. &he position of theCatholic reli!ion in the Philippines as re!ards the R; *a% does not suffice to Hualif# the postin! b#one of its "e"bers of a tarpaulin as reli!ious speech solel# on such basis. &he enu"eration ofcandidates on the face of the tarpaulin precludes an# doubtas to its nature as speech %ith politicalconseHuences and not reli!ious speech.

4urther"ore, the definition of an 9ecclesiastical affair9 in Austria v. National *abor RelationsCo""ission666 cited b# petitioners finds no application in the present case. &he postin! of thetarpaulin does not fall %ithin the cate!or# of "atters that are be#ond the urisdiction of civil courts asenu"erated in the Austriacase such as 9proceedin!s for e$co""unication, ordinations of reli!ious"inisters, ad"inistration of sacra"ents and other activities %ithattached reli!ious si!nificance.966<

A 4INA* N&E

'e "aintain s#"pathies for the CME*EC in atte"ptin! to do %hat it thou!ht %as its dut# in thiscase. ;o%ever, it %as "isdirected.

CME*EC2s !eneral role includes a "andate to ensure eHual opportunities and reduce spendin!a"on! candidates and their re!istered political parties. It is not to re!ulate or li"it the speech of theelectorate as it strives to participate inthe electoral e$ercise.






















&he tarpaulin in Huestion "a# be vie%ed as producin! a caricature of those %ho are runnin! forpublic office.&heir "essa!e "a# be construed !eneraliations of ver# co"ple$ individuals and part#>list or!aniations.

&he# are classified into blac( and %hite@ as belon!in! to 9&ea" Pata#9 or 9&ea" Buha#.9

But this caricature, thou!h not a!reeable to so"e, is still protected speech.

&hat petitioners chose to cate!orie the" as purve#ors of death or of life on the basis of a sin!leissue - and a co"ple$ piece of le!islation at that - can easil# be interpreted as anatte"pt tostereo t#pe the candidates and part#>list or!aniations. Not all "a# a!ree to the %a# their thou!hts%ere e$pressed, as in fact there are other Catholic dioceses that chose not to follo% the e$a"ple ofpetitioners.

So"e "a# have thou!ht that there should be "ore roo" to consider bein! "ore broad>"inded andnon>ud!"ental. So"e "a# have e$pected that the authors %ould !ive "ore space to practicefor!iveness and hu"ilit#.

But, the Bill of Ri!hts enu"erated in our Constitution is an enu"eration of our funda"ental liberties.It is not a detailed code that prescribes !ood conduct. It provides space for all to be !uided b# theirconscience, not onl# in the act that the# do to others but also in ud!"ent of the acts of others.

4reedo" for the thou!ht %e can disa!ree %ith can be %ielded not onl# b# those in the "inorit#. &hiscan often be e$pressed b# do"inant institutions, even reli!ious ones. &hat the# "ade their pointdra"aticall# and in a lar!e %a# does not necessaril# "ean that their state"ents are true, or that the#have basis, or that the# have been e$pressed in !ood taste.

E"bedded in the tarpaulin, ho%ever, are opinions e$pressed b# petitioners. It is a specie ofe$pression protected b# our funda"ental la%. It is an e$pression desi!ned to invite attention, causedebate, and hopefull#, persuade. It "a# be "otivated b# the interpretation of petitioners of their

ecclesiastical dut#, but their parishioner2s actions %ill have ver# real secular conseHuences.Certainl#, provocative "essa!es do "atter for the elections.

'hat is involved in this case is the "ost sacred of speech for"s@ e$pression b# the electorate thattends to rouse the public to debate conte"porar# issues. &his is not speechb# candidates or politicalparties to entice votes. It is a portion of the electorate tellin! candidates the conditions for theirelection. It is the substantive content of the ri!ht to suffra!e.

&his. is a for" of speech hopeful of a Hualit# of de"ocrac# that %e should all deserve. It is protectedas a funda"ental and pri"ordial ri!ht b# our Constitution. &he e$pression in the "ediu" chosen b#petitioners deserves our protection.

';ERE4RE, the instant petition is RAN&ED. &he te"porar# restrainin! order previousl# issuedis hereb# "ade per"anent. &he act of the CME*EC in issuin! the assailed notice dated 4ebruar#33, 35/6 and letter dated 4ebruar# 37, 35/6 is declared unconstitutional.

S RDERED.



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Diocese of Bacolod v Comelec

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