G.R. No.

162777

August 31, 2004

FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS, !" !s!#t!$ %& 'ts C()' *)#, +EN,AMIN S. A+ALOS, ESMERAL-A AMORA.LA-RA, '# (! /)")/'t& )s A/t'#g -' !/to IV, N)t'o#)0 C)"'t)0 ,u$'/')0 R!g'o#, Co**'ss'o# o# E0!/t'o#s, )#$ t(! SOLICITOR GENERAL, respondents. DECISION AZC1NA, J.2 In this petition for prohibition with prayer for the issuance of a writ of preliminary injunction, rancisco I. Chave! stands as a ta"payer and a citi!en as#in$ this Court to enjoin the Commission on Elections %CO&E'EC( from enforcin$ Section )* of its +esolution No. ,-*., dated /anuary ,, *..0. 1he assailed provision is, as follows2 S!/t'o# 32. 3ll propa$anda materials such as posters, streamers, stic#ers or paintin$s on walls and other materials showin$ the picture, ima$e, or name of a person, and all advertisements on print, in radio or on television showin$ the ima$e or mentionin$ the name of a person, who subse4uent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within ) days after the effectivity of these implementin$ rules5 otherwise, he and said radio station, print media or television station shall be presumed to have conducted premature campai$nin$ in violation of Section 6. of the Omnibus Election Code. 7etitioner Chave!, on various dates, entered into formal a$reements with certain establishments to endorse their

products. On 3u$ust 86, *..), he authori!ed a certain 3ndrew So to use his name and ima$e for 9,: North, a clothin$ company. 7etitioner also si$ned Endorsement 3$reements with ;on#a International 7lastics &anufacturin$ Corporation and another corporation involved in the amusement and video $ames business, <=>o". 1hese last two a$reements were entered into on October 80, *..) and November 8., *..), respectively. 7ursuant to these a$reements, three billboards were set up alon$ the >alintawa# Interchan$e of the North E"pressway. One billboard showed petitioner promotin$ the plastic products of ;on#a International 7lastics &anufacturin$ Corporation, and the other two showed petitioner endorsin$ the clothes of 9,: North. One more billboard was set up alon$ +o"as >oulevard showin$ petitioner promotin$ the $ame and amusement parlors of <=>o". On December )., *..), however, petitioner filed his certificate of candidacy for the position of Senator under 3lyansa n$ 7a$=asa, a tripartite alliance of three political parties2 7+O&DI, +E7O+&3, and 3#syon Demo#rati#o. On /anuary ,, *..0, respondent CO&E'EC issued +esolution No. ,-*., which contained Section )*, the provision assailed herein. On /anuary *8, *..0, petitioner was directed to comply with the said provision by the CO&E'EC?s 'aw Department. @e replied, on /anuary *9, *..0, by re4uestin$ the CO&E'EC that he be informed as to how he may have violated the assailed provision. @e sent another letter dated ebruary *), *..0, this time as#in$ the CO&E'EC that he be e"empted from the application of Section )*, considerin$ that the billboards adverted to are mere product endorsements and cannot be construed as paraphernalia for premature campai$nin$ under the rules. 1he CO&E'EC answered petitioner?s re4uest by issuin$ another letter, dated ebruary *A, *..0, wherein it ordered him to remove or cause the removal of the billboards, or to cover them from public view pendin$ the approval of his re4uest.

eelin$ a$$rieved, petitioner Chave! as#s this Court that the CO&E'EC be enjoined from enforcin$ the assailed provision. @e ur$es this Court to declare the assailed provision unconstitutional as the same is alle$edly %8( a $ross violation of the non= impairment clause5 %*( an invalid e"ercise of police power5 %)( in the nature of an e"=post facto law5 %0( contrary to the air Elections 3ct5 and %-( invalid due to overbreadth. Is Section )* of CO&E'EC +esolution No. ,-*. an invalid e"ercise of police powerB 7etitioner ar$ues that the billboards, while they e"hibit his name and ima$e, do not at all announce his candidacy for any public office nor solicit support for such candidacy from the electorate. 1hey are, he claims, mere product endorsements and not election propa$anda. 7rohibitin$, therefore, their e"hibition to the public is not within the scope of the powers of the CO&E'EC, he concludes. 1his Court ta#es a contrary view. 7olice power, as an inherent attribute of soverei$nty, is the power to prescribe re$ulations to promote the health, morals, peace, education, $ood order, or safety, and the $eneral welfare of the people.8 1o determine the validity of a police measure, two 4uestions must be as#ed2 %8( Does the interest of the public in $eneral, as distin$uished from those of a particular class, re4uire the e"ercise of police powerB and %*( 3re the means employed reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individualsB 3 close e"amination of the assailed provision reveals that its primary objectives are to prohibit premature campai$nin$ and to level the playin$ field for candidates of public office, to e4uali!e the situation between popular or rich candidates, on one hand, and lesser=#nown or poorer candidates, on the other, by preventin$ the former from enjoyin$ undue advanta$e in e"posure and publicity on account of their resources and popularity. 1he latter is a valid reason for the e"ercise of police power as held in National 7ress Club v. CO&E'EC, * wherein the petitioners 4uestioned the constitutionality of Section 88%b( of

+epublic 3ct No. ,,0,, which prohibited the sale or donation of print space and air time Cfor campai$nin$ or other political purposes,C e"cept to the CO&E'EC. 1he obvious intention of this provision is to e4uali!e, as far as practicable, the situations of rich and poor candidates by preventin$ the former from enjoyin$ the undue advanta$e offered by hu$e campai$n Cwar chests.C 1his Court ruled therein that this objective is of special importance and ur$ency in a country which, li#e ours, is characteri!ed by e"treme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with so many of our population fallin$ below the poverty line. &oreover, petitioner cannot claim that the subject billboards are purely product endorsements and do not announce nor solicit any support for his candidacy. Dnder the Omnibus Election Code, Celection campai$nC or Cpartisan political activityC is defined as an act desi$ned to promote the election or defeat of a particular candidate or candidates to a public office. 3ctivities included under this definition are2 %8( ormin$ or$ani!ations, associations, clubs, committees, or other $roups of persons for the purpose of solicitin$ votes andEor underta#in$ any campai$n for or a$ainst a candidate %*( @oldin$ political caucuses, conferences, meetin$s, rallies, parades, or other similar assemblies, for the purpose of solicitin$ votes andEor underta#in$ any campai$n or propa$anda for or a$ainst a candidate5 %)( &a#in$ speeches, announcements or commentaries, or holdin$ interviews for or a$ainst the election of any candidate for public office5 %0( 7ublishin$ or distributin$ campai$n literature or materials desi$ned to support or oppose the election of any candidate5 or
2

%-( Directly or indirectly solicitin$ votes, pled$es or support for or a$ainst a candidate.) %underscorin$ ours( It is true that when petitioner entered into the contracts or a$reements to endorse certain products, he acted as a private individual and had all the ri$ht to lend his name and ima$e to these products. @owever, when he filed his certificate of candidacy for Senator, the billboards featurin$ his name and ima$e assumed partisan political character because the same indirectly promoted his candidacy. 1herefore, the CO&E'EC was actin$ well within its scope of powers when it re4uired petitioner to discontinue the display of the subject billboards. If the subject billboards were to be allowed, candidates for public office whose name and ima$e are used to advertise commercial products would have more opportunity to ma#e themselves #nown to the electorate, to the disadvanta$e of other candidates who do not have the same chance of lendin$ their faces and names to endorse popular commercial products as ima$e models. Similarly, an individual intendin$ to run for public office within the ne"t few months, could pay private corporations to use him as their ima$e model with the intention of familiari!in$ the public with his name and ima$e even before the start of the campai$n period. 1his, without a doubt, would be a circumvention of the rule a$ainst premature campai$nin$2 S!/. 30. Election campai$n or partisan political activity outside campai$n period. F It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to en$a$e in an election campai$n or partisan political activity e"cept durin$ the campai$n period. " " " 0 3rticle IG %C( %0( of the Constitution provides2 S!/. 4. 1he Commission may, durin$ the election period, supervise or re$ulate the enjoyment or utili!ation of all franchises or permits for the operation of transportation and other public utilities, media of communication or

information, all $rants, special privile$es, or concessions $ranted by the <overnment or any subdivision, a$ency, or instrumentality thereof, includin$ any $overnment=owned or controlled corporation or its subsidiary. Such supervision or re$ulation shall aim to ensure e4ual opportunity, time, and space, and the ri$ht to reply, includin$ reasonable, e4ual rates therefor, for public information campai$ns and forums amon$ candidates in connection with the objective of holdin$ free, orderly, honest, peaceful, and credible elections. Dnder the abovementioned Constitutional provision, the CO&E'EC is e"pressly authori!ed to supervise or re$ulate the enjoyment or utili!ation of all media communication or information to ensure e4ual opportunity, time, and space. 3ll these are aimed at the holdin$ of free, orderly, honest, peaceful, and credible elections. Neither is Section )* of +esolution No. ,-*. a $ross violation of the non=impairment clause. 1he non=impairment clause of the Constitution must yield to the loftier purposes tar$eted by the <overnment.- E4ual opportunity to proffer oneself for public office, without re$ard to the level of financial resources one may have at his disposal, is indeed of vital interest to the public. 1he State has the duty to enact and implement rules to safe$uard this interest. 1ime and a$ain, this Court has said that contracts affectin$ public interest contain an implied reservation of the police power as a postulate of the e"istin$ le$al order. 1his power can be activated at anytime to chan$e the provisions of the contract, or even abro$ate it entirely, for the promotion or protection of the $eneral welfare. Such an act will not militate a$ainst the impairment clause, which is subject to and limited by the paramount police power., urthermore, this Court notes that the very contracts entered into by petitioner provide that the endorser?s photo$raph and ima$e shall be utili!ed in whatever form, mode and manner Cin #eepin$ with norms of decency, reasonableness, morals and law5CA and in
3

whatever form, mode and manner not contrary to law and norms of decency,C6 and Cin whatever form, mode and manner in #eepin$ with norms of decency, reasonableness, moralsand law.C9 7etitioner also claims that Section )* of +esolution No. ,-*. is in the nature of an ex post facto law. @e ur$es this Court to believe that the assailed provision ma#es an individual criminally liable for an election offense for not removin$ such advertisement, even if at the time the said advertisement was e"hibited, the same was clearly le$al. @ence, it ma#es a person, whose name or ima$e is featured in any such advertisement, liable for premature campai$nin$ under the Omnibus Election Code. 8. 3 close scrutiny of this rationale, however, demonstrates its lac# of persuasiveness. Section )*, althou$h not penal in nature, defines an offense and prescribes a penalty for said offense. 'aws of this nature must operate prospectively, e"cept when they are favorable to the accused. It should be noted, however, that the offense defined in the assailed provision is not the puttin$ up of Cpropa$anda materials such as posters, streamers, stic#ers or paintin$s on walls and other materials showin$ the picture, ima$e or name of a person, and all advertisements on print, in radio or on television showin$ the ima$e or mentionin$ the name of a person, who subse4uent to the placement or display thereof becomes a candidate for public office.C Nor does it prohibit or consider an offense the enterin$ of contracts for such propa$anda materials by an individual who subse4uently becomes a candidate for public office. One definitely does not commit an offense by enterin$ into a contract with private parties to use his name and ima$e to endorse certain products prior to his becomin$ a candidate for public office. 1he offense, as e"pressly prescribed in the assailed provision, is the non=removal of the described propa$anda materials three %)( days after the effectivity of CO&E'EC +esolution No. ,-*.. If the candidate for public office fails to remove such propa$anda materials after the $iven period, he shall be liable under Section 6. of the Omnibus Election Code for premature campai$nin$. Indeed, nowhere is it

indicated in the assailed provision that it shall operate retroactively. 1here is, therefore, no ex post facto law in this case. Ne"t, petitioner ur$es that Section )* is a violation of the air Elections 3ct. 3ccordin$ to him, under this law, billboards are already permitted as lawful election propa$anda. @e claims, therefore, that the CO&E'EC, in effectively prohibitin$ the use of billboards as a form of election propa$anda throu$h the assailed provision, violated the air Elections 3ct. 7etitioner?s ar$ument is not tenable. 1he Solicitor <eneral ri$htly points out that the assailed provision does not prohibit billboards as lawful election propa$anda. It only re$ulates their use to prevent premature campai$nin$ and to e4uali!e, as much as practicable, the situation of all candidates by preventin$ popular and rich candidates from $ainin$ undue advanta$e in e"posure and publicity on account of their resources and popularity. 88 &oreover, by re$ulatin$ the use of such election propa$anda materials, the CO&E'EC is merely doin$ its duty under the law. Dnder Sections ) and 8) of the air Elections 3ct, all election propa$anda are subject to the supervision and re$ulation by the CO&E'EC2 SEC1ION ). Lawful Election Propaganda. == Election propa$anda, whether on television, cable television radio, newspapers or any other medium is hereby allowed for all re$istered political parties, national, re$ional, sectoral parties or or$ani!ations participatin$ under the party list elections and for all bona fide candidates see#in$ national and local elective positions subject to the limitation on authori!ed e"penses of candidates and political parties observance of truth in advertisin$ and to the supervision and re$ulation by the Commission on Elections %CO&E'EC(. or the purpose of this 3ct, lawful election propa$anda shall include2 ).8. 7amphlets, leaflets, cards, decals, stic#ers or other written or printed materials the si!e of which does not
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e"ceed ei$ht and one half inches in width and fourteen inches in len$th5 ).*. @andwritten or printed letters ur$in$ voters to vote for or a$ainst any particular political party or candidate for public office5 ).). Cloth, paper or cardboard posters whether framed or posted, with an area not e"ceedin$ two%*( feet by three %)( feet, e"cept that, at the site and on the occasion of a public meetin$ or rally, or in announcin$ the holdin$ of said meetin$ or rally, streamers not e"ceedin$ three %)( feet by ei$ht %6( feet in si!e, shall be allowed2 7rovided, 1hat said streamers may be displayed five %-( days before the date of the meetin$ or rally and shall be removed within twenty=four %*0( hours after said meetin$ or rally5 ).0. 7aid advertisements in print or broadcast media2 7rovided, 1hat the advertisements shall follow the re4uirements set forth in Section 0 of this 3ct5 and ).-. 3ll other forms of election propa$anda not prohibited by the Omnibus Election Code or this 3ct. """ SEC1ION 8). Authority of the COMELEC to 7romul$ate +ules5 Election Offenses. F= 1he CO&E'EC shall promul$ate and furnish all political parties and candidates and the mass media entities the rules and re$ulations for the implementation of this 3ct, consistent with the criteria established in 3rticle IG=C, Section 0 of the Constitution and Section 6, of the Omnibus Election Code %>atas 7ambansa >l$. 668(.

+ules and re$ulations promul$ated by the CO&E'EC under and by authority of this Section shall ta#e effect on the seventh day after their publication in at least two %*( daily newspapers of $eneral circulation. 7rior to effectivity of said rules and re$ulations, no political advertisement or propa$anda for or a$ainst any candidate or political party shall be published or broadcast throu$h mass media. Hiolation of this 3ct and the rules and re$ulations of the CO&E'EC issued to implement this 3ct shall be an election offense punishable under the first and second para$raphs of Section *,0 of the Omnibus Election Code %>atas 7ambansa >l$. 668(. inally, petitioner contends that Section )* of CO&E'EC +esolution No. ,-*. is invalid because of overbreadth. 3 statute or re$ulation is considered void for overbreadth when it offends the constitutional principle that a $overnmental purpose to control or prevent activities constitutionally subject to State re$ulations may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms.8* 1he provision in 4uestion is limited in its operation both as to time and scope. It only disallows the continued display of a person?s propa$anda materials and advertisements after he has filed a certificate of candidacy and before the start of the campai$n period. Said materials and advertisements must also show his name and ima$e. 1here is no blan#et prohibition of the use of propa$anda materials and advertisements. Durin$ the campai$n period, these may be used subject only to reasonable limitations necessary and incidental to achievin$ the purpose of preventin$ premature campai$nin$ and promotin$ e4uality of opportunities amon$ all candidates.
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1he provision, therefore, is not invalid on the $round of overbreadth. 4HEREFORE, the petition is DIS&ISSED and Section )* of CO&E'EC +esolution No. ,-*. is declared valid and constitutional. 1he prayer for a 1emporary +estrainin$ Order andEor a Irit of 7reliminary Injunction is hereby DENIED. No costs. SO OR-ERE-.

G.R. No. 131613

No5!*%! 26, 2007

). 7enera never admitted the alle$ations of the petition for dis4ualification and has consistently disputed the char$e of premature campai$nin$. 0. 1he admission that 7enera participated in a motorcade is not the same as admittin$ she en$a$ed in premature election campai$nin$. Section A9%a( of the Omnibus Election Code defines a CcandidateC as Cany person aspirin$ for or see#in$ an elective public office, who has filed a certificate of candidacy " " ".C 1he second sentence, third para$raph, Section 8- of +3 60),, as amended by Section 8) of +3 9),9, provides that CKaLny person who files his certificate of candidacy within Kthe period for filin$L shall only be considered as a candidate at the start of the campai$n periodfor which he filed his certificate of candidacy.C 1he immediately succeedin$ proviso in the same third para$raph states that Cunlawful acts or omissions applicable to a candidate shall ta#e effect only upon the start of the aforesaid campai$n period.C 1hese two provisions determine the resolution of this case. 1he Decision states that CKwLhen the campai$n period starts and Kthe person who filed his certificate of candidacyL proceeds with hisEher candidacy, hisEher intent turnin$ into actuality, we can already consider hisEher acts, after the filin$ of hisEher COC and prior to the campai$n period, as the promotion of hisEher election as a candidate, hence, constitutin$ premature campai$nin$, for which heEshe may be dis4ualified.C8 Dnder the Decision, a candidate may already be liable for premature campai$nin$ after the filin$ of the certificate of candidacy but even before the start of the campai$n period. rom the filin$ of the certificate of candidacy, even lon$ before the start of the campai$n period, the Decision considers the partisan political acts of a person so filin$ a certificate of candidacy Cas the promotion of hisEher election as a candidate.C 1hus, such person can be dis4ualified for premature campai$nin$ for acts done
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ROSALIN-A A. 8ENERA, 7etitioner, vs. COMMISSION ON ELECTIONS )#$ E-GAR T. AN-ANAR, +espondents. RESOL1TION CAR8IO, J.: Ie $rant +osalinda 3. 7eneraJs %7enera( motion for reconsideration of this CourtJs Decision of 88 September *..9 %Decision(. 1he assailed Decision dismissed 7eneraJs petition and affirmed the +esolution dated ). /uly *..6 of the CO&E'EC En >anc as well as the +esolution dated *0 /uly *..A of the CO&E'EC Second Division. 1he Decision dis4ualified 7enera from runnin$ for the office of &ayor in Sta. &onica, Suri$ao del Norte and declared that the Hice=&ayor should succeed 7enera. In support of her motion for reconsideration, 7enera submits the followin$ ar$uments2 8. 7enera was not yet a candidate at the time of the incident under Section 88 of +3 60), as amended by Section 8) of +3 9),9. *. 1he petition for dis4ualification failed to submit convincin$ and substantial evidence a$ainst 7enera for violation of Section 6. of the Omnibus Election Code.

before the start of the campai$n period. In short, the Decision considers a person who files a certificate of candidacy already a CcandidateC even before the start of the campai$n period.
lawphil

1he assailed Decision is contrary to the clear intent and letter of the law. 1he Decision reverses 'anot v. CO&E'EC,* which held that ) "! so# 9(o :'0!s ) /! t':'/)t! o: /)#$'$)/& 's #ot ) /)#$'$)t! u#t'0 t(! st) t o: t(! /)*")'g# "! 'o$. In Lanot, this Court e"plained2 1hus, the essential elements for violation of Section 6. of the Omnibus Election Code are2 %8( a person en$a$es in an election campai$n or partisan political activity5 %*( the act is desi$ned to promote the election or defeat of a particular candidate or candidates5 %)( the act is done outside the campai$n period. 1he second element re4uires the e"istence of a Ccandidate.C Dnder Section A9%a(, a candidate is one who Chas filed a certificate of candidacyC to an elective public office. Dnless one has filed his certificate of candidacy, he is not a Ccandidate.C 1he third element re4uires that the campai$n period has not started when the election campai$n or partisan political activity is committed. 3ssumin$ that all candidates to a public office file their certificates of candidacy on the last day, which under Section A- of the Omnibus Election Code is the day before the start of the campai$n period, then no one can be prosecuted for violation of Section 6. for acts done prior to such last day. >efore such last day, there is no Cparticular candidate or candidatesC to campai$n for or a$ainst. On the day immediately after the last day of filin$, the campai$n period starts and Section 6. ceases to apply since Section 6. covers only acts done CoutsideC the campai$n period.

1hus, if all candidates file their certificates of candidacy on the last day, Section 6. may only apply to acts done on such last day, which is before the start of the campai$n period and after at least one candidate has filed his certificate of candidacy. 1his is perhaps the reason why those runnin$ for elective public office usually file their certificates of candidacy on the last day or close to the last day. 1here is no dispute that EusebioJs acts of election campai$nin$ or partisan political activities were committed outside of the campai$n period. 1he only 4uestion is whether Eusebio, who filed his certificate of candidacy on *9 December *..), was a CcandidateC when he committed those acts before the start of the campai$n period on *0 &arch *..0. Section 88 of +epublic 3ct No. 60), %C+3 60),C( moved the deadline for the filin$ of certificates of candidacy to 8*. days before election day. 1hus, the ori$inal deadline was moved from *) &arch *..0 to * /anuary *..0, or 68 days earlier. 1he crucial 4uestion is2 did this chan$e in the deadline for filin$ the certificate of candidacy ma#e one who filed his certificate of candidacy before * /anuary *..0 immediately liable for violation of Section 6. if he en$a$ed in election campai$n or partisan political activities prior to the start of the campai$n period on *0 &arch *..0B Section 88 of +3 60), provides2 SEC1ION 88. Official >allot. F 1he Commission shall prescribe the si!e and form of the official ballot which shall contain the titles of the positions to be filled andEor the propositions to be voted upon in an initiative, referendum or plebiscite. Dnder each position, the names of candidates shall be arran$ed alphabetically by surname and uniformly printed usin$ the same type si!e. 3 fi"ed space where the chairman of the >oard of Election Inspectors shall affi" hisEher si$nature to authenticate the official ballot shall be provided.

>oth sides of the ballots may be used when necessary. or this purpose, the deadline for the filin$ of certificate of candidacyEpetition for re$istrationE manifestation to participate in the election shall not be later than one hundred twenty %8*.( days before the elections2 7rovided, 1hat, any elective official, whether national or local, runnin$ for any office other than the one which heEshe is holdin$ in a permanent capacity, e"cept for president and vice=president, shall be deemed resi$ned only upon the start of the campai$n period correspondin$ to the position for which heEshe is runnin$2 7rovided, further, 1hat, unlawful acts or omissions applicable to a candidate shall ta#e effect upon the start of the aforesaid campai$n period2 7rovided, finally, 1hat, for purposes of the &ay 88, 8996 elections, the deadline for filin$ of the certificate of candidacy for the positions of 7resident, Hice= 7resident, Senators and candidates under the party=list system as well as petitions for re$istration andEor manifestation to participate in the party=list system shall be on ebruary 9, 8996 while the deadline for the filin$ of certificate of candidacy for other positions shall be on &arch *A, 8996. 1he official ballots shall be printed by the National 7rintin$ Office andEor the >an$#o Sentral n$ 7ilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. 1he Commission may contract the services of private printers upon certification by the National 7rintin$ OfficeE>an$#o Sentral n$ 7ilipinas that it cannot meet the printin$ re4uirements. 3ccredited political parties and deputi!ed citi!ensJ arms of the Commission may assi$n watchers in the printin$, stora$e and distribution of official ballots. 1o prevent the use of fa#e ballots, the Commission throu$h the Committee shall ensure that the serial number on the ballot stub shall be printed in ma$netic in# that shall be easily detectable by ine"pensive hardware and shall be impossible to reproduce on a photocopyin$ machine, and that identification mar#s, ma$netic strips, bar codes and other technical and security mar#in$s, are provided on the ballot.

1he official ballots shall be printed and distributed to each cityEmunicipality at the rate of one %8( ballot for every re$istered voter with a provision of additional four %0( ballots per precinct. Dnder Section 88 of +3 60),, the only purpose for the early filin$ of certificates of candidacy is to $ive ample time for the printin$ of official ballots. 1his is clear from the followin$ deliberations of the >icameral Conference Committee2 SEN31O+ <ONM3'ES. O#ay. 1hen, how about the campai$n period, would it be the sameK,L uniform for local and national officialsB 1@E C@3I+&3N %+E7. 13N/D31CO(. 7ersonally, I would a$ree to retainin$ it at the present periods. SEN31O+ <ONM3'ES. >ut the moment one files a certificate of candidacy, heJs already a candidate, and there are many prohibited acts on the part of candidate. 1@E C@3I+&3N %+E7. 13N/D31CO(. Dnless we. . . . SEN31O+ <ONM3'ES. 3nd you cannot say that the campai$n period has not yet be$an %sic(. 1@E C@3I+&3N %+E7. 13N/D31CO(. If we donJt provide that the filin$ of the certificate will not brin$ about oneJs bein$ a candidate. SEN31O+ <ONM3'ES. If thatJs a fact, the law cannot chan$e a fact. 1@E C@3I+&3N %+E7. 13N/D31CO(. No, but if we can provide that the filin$ of the certificate of candidacy will not result in that official vacatin$ his position, we can also provide that insofar he is concerned, election period or his bein$ a candidate will not yet commence. >ecause here, the reason why we are doin$ an early
9

filin$ is to afford enou$h time to prepare this machine readable ballots. So, with the manifestations from the Commission on Elections, &r. Chairman, the @ouse 7anel will withdraw its proposal and will a$ree to the 8*.=day period provided in the Senate version. 1@E C@3I+&3N %SEN31O+ E+N3N(. 1han# you, &r. Chairman. """" SEN31O+ <ONM3'ES. @ow about prohibition a$ainst campai$nin$ or doin$ partisan acts which apply immediately upon bein$ a candidateB 1@E C@3I+&3N %+E7. 13N/D31CO(. 3$ain, since the intention of this provision is just to afford the Comelec enou$h time to print the ballots, this provision does not intend to chan$e the campai$n periods as presently, or rather election periods as presently fi"ed by e"istin$ law. 1@E 3C1IN< C@3I+&3N %SEN. E+N3N(. So, it should be subject to the other prohibition. 1@E C@3I+&3N %+E7. 13N/D31CO(. 1hatJs ri$ht. 1@E 3C1IN< C@3I+&3N %SEN. E+N3N(. O#ay. 1@E C@3I+&3N %+E7. 13N/D31CO(. In other words, actually, there would be no conflict anymore because we are tal#in$ about the 8*.=day period before election as the last day of filin$ a certificate of candidacy, election period starts 8*. days also. So that is election period already. >ut he will still not be considered as a candidate.

1hus, because of the early deadline of * /anuary *..0 for purposes of printin$ of official ballots, Eusebio filed his certificate of candidacy on *9 December *..). Con$ress, however, never intended the filin$ of a certificate of candidacy before * /anuary *..0 to ma#e the person filin$ to become immediately a CcandidateC for purposes other than the printin$ of ballots. 1his le$islative intent prevents the immediate application of Section 6. of the Omnibus Election Code to those filin$ to meet the early deadline. 1he clear intention of Con$ress was to preserve the Celection periods as " " " fi"ed by e"istin$ lawC prior to +3 60), and that one who files to meet the early deadline Cwill still not be considered as a candidate.C) %Emphasis in the ori$inal( 'anot was decided on the $round that one who files a certificate of candidacy is not a candidate until the start of the campai$n period. 1his $round was based on the deliberations of the le$islators who e"plained the intent of the provisions of +3 60),, which laid the le$al framewor# for an automated election system. 1here was no e"press provision in the ori$inal +3 60), statin$ that one who files a certificate of candidacy is not a candidate until the start of the campai$n period. Ihen Con$ress amended +3 60),, Con$ress decided to e"pressly incorporate the 'anot doctrine into law, reali!in$ that 'anot merely relied on the deliberations of Con$ress in holdin$ that N 1he clear intention of Con$ress was to preserve the Celection periods as " " " fi"ed by e"istin$ lawC prior to +3 60), and that one who files to meet the early deadline Cwill still not be considered as a candidate.C0 %Emphasis supplied( Con$ress wanted to insure that no person filin$ a certificate of candidacy under the early deadline re4uired by the automated election system would be dis4ualified or penali!ed for any partisan political act done before the start of the campai$n period. 1hus, in enactin$ +3 9),9, Con$ress e"pressly wrote the 'anot

10

doctrine into the second sentence, third para$raph of the amended Section 8- of +3 60),, thus2 """ or this purpose, the Commission shall set the deadline for the filin$ of certificate of candidacyEpetition for re$istrationEmanifestation to participate in the election. 3ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campai$n period for which he filed his certificate of candidacy2 7rovided, 1hat, unlawful acts or omissions applicable to a candidate shall ta#e effect only upon the start of the aforesaid campai$n period2 7rovided, finally, 1hat any person holdin$ a public appointive office or position, includin$ active members of the armed forces, and officers and employees in $overnment= owned or =controlled corporations, shall be considered ipso facto resi$ned from hisEher office and must vacate the same at the start of the day of the filin$ of hisEher certificate of candidacy. %>oldfacin$ and underlinin$ supplied( Con$ress elevated the 'anot doctrine into a statute by specifically insertin$ it as the second sentence of the third para$raph of the amended Section 8- of +3 60),, which cannot be annulled by this Court e"cept on the sole $round of its unconstitutionality. 1he Decision cannot reverse 'anot without repealin$ this second sentence, because to reverse 'anot would mean repealin$ this second sentence. 1he assailed Decision, however, in reversin$ 'anot does not claim that this second sentence or any portion of Section 8- of +3 60),, as amended by +3 9),9, is unconstitutional. In fact, the Decision considers the entire Section 8- $ood law. 1hus, the Decision is self=contradictory N reversin$ 'anot but maintainin$ the constitutionality of the second sentence, which embodies the 'anot doctrine. In so doin$, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence,

third para$raph, Section 8- of +3 60),, as amended by +3 9),9. In enactin$ +3 9),9, Con$ress even further clarified the first proviso in the third para$raph of Section 8- of +3 60),. 1he ori$inal provision in +3 60), states N " " " 7rovided, further, 1hat, unlawful acts or omissions applicable to a candidate shall ta#e effect upon the start of the aforesaid campai$n period, " " ". In +3 9),9, Con$ress inserted the word ConlyC so that the first proviso now reads N " " " 7rovided, 1hat, unlawful acts or omissions applicable to a candidate shall ta#e effect only upon the start of the aforesaid campai$n period " " ". %Emphasis supplied( 1hus, Con$ress not only reiterated but also stren$thened its mandatory directive that election offenses can be committed by a candidate ConlyC upon the start of the campai$n period. 1his clearly means that before the start of the campai$n period, such election offenses cannot be so committed. Ihen the applicable provisions of +3 60),, as amended by +3 9),9, are read to$ether, these provisions of law do not consider 7enera a candidate for purposes other than the printin$ of ballots, until the start of the campai$n period. 1here is absolutely no room for any other interpretation. Ie 4uote with approval the Dissentin$ Opinion of /ustice 3ntonio 1. Carpio2 " " " 1he definition of a CcandidateC in Section A9%a( of the Omnibus Election Code should be read to$ether with the amended Section 8- of +3 60),. 3 COcandidateJ refers to any person aspirin$ for or see#in$ an elective public office, who has
11

filed a certificate of candidacy by himself or throu$h an accredited political party, a$$roupment or coalition of parties.C @owever, it is no lon$er enou$h to merely file a certificate of candidacy for a person to be considered a candidate because Cany person who files his certificate of candidacy within Kthe filin$L period shall only be considered a candidate at the start of the campai$n period for which he filed his certificate of candidacy.C 3ny person may thus file a certificate of candidacy on any day within the prescribed period for filin$ a certificate of candidacy yet that person shall be considered a candidate, for purposes of determinin$ oneJs possible violations of election laws, only durin$ the campai$n period. Indeed, there is no Celection campai$nC or Cpartisan political activityC desi$ned to promote the election or defeat of a particular candidate or candidates to public office simply because there is no CcandidateC to spea# of prior to the start of the campai$n period. 1herefore, despite the filin$ of her certificate of candidacy, the law does not consider 7enera a candidate at the time of the 4uestioned motorcade which was conducted a day before the start of the campai$n period. " " " 1he campai$n period for local officials be$an on ). &arch *..A and ended on 8* &ay *..A. 7enera filed her certificate of candidacy on *9 &arch *..A. 7enera was thus a candidate on *9 &arch *..9 only for purposes of printin$ the ballots. On *9 &arch *..A, the law still did not consider 7enera a candidate for purposes other than the printin$ of ballots. 3cts committed by 7enera prior to ). &arch *..A, the date when she became a Ccandidate,C even if constitutin$ election campai$nin$ or partisan political activities, are not punishable under Section 6. of the Omnibus Election Code. Such acts are within the realm of a citi!enJs protected freedom of e"pression. 3cts committed by 7enera within the campai$n period are not covered by Section 6. as Section 6. punishes only acts outside the campai$n period. 1he assailed Decision $ives a specious reason in e"plainin$ away the first proviso in the third para$raph, the amended Section 8- of +3 60), that election offenses applicable to

candidates ta#e effect only upon the start of the campai$n period. 1he Decision states that2 " " " K1Lhe line in Section 8- of +epublic 3ct No. 60),, as amended, which provides that Cany unlawful act or omission applicable to a candidate shall ta#e effect only upon the start of the campai$n period,C does not mean that the acts constitutin$ premature campai$nin$ can only be committed, for which the offender may be dis4ualified, durin$ the campai$n period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campai$nin$ before the start of the campai$n period is lawful, such that the offender may freely carry out the same with impunity. 3s previously established, a person, after filin$ hisEher COC but prior to hisEher becomin$ a candidate %thus, prior to the start of the campai$n period(, can already commit the acts described under Section A9%b( of the Omnibus Election Code as election campai$n or partisan political activity, @owever, only after said person officially becomes a candidate, at the be$innin$ of the campai$n period, can said acts be $iven effect as premature campai$nin$ under Section 6. of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campai$n period, can hisEher dis4ualification be sou$ht for acts constitutin$ premature campai$nin$. Obviously, it is only at the start of the campai$n period, when the person officially becomes a candidate, that the undue and ini4uitous advanta$es of hisEher prior acts, constitutin$ premature campai$nin$, shall accrue to hisEher benefit. Compared to the other candidates who are only about to be$in their election campai$n, a candidate who had previously en$a$ed in premature campai$nin$ already enjoys an unfair headstart in promotin$ hisEher candidacy., %Emphasis supplied( It is a basic principle of law that any act is lawful unless e"pressly declared unlawful by law. 1his is specially true to e"pression or speech, which Con$ress cannot outlaw e"cept on very narrow $rounds involvin$ clear, present and imminent dan$er to the
12

State. 1he mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. 1hus, there is no need for Con$ress to declare in Section 8- of +3 60),, as amended by +3 9),9, that political partisan activities before the start of the campai$n period are lawful. It is sufficient for Con$ress to state that Cany unlawful act or omission applicable to a candidate shall ta#e effect only upon the start of the campai$n period.C 1he only inescapable and lo$ical result is that the same acts, if done before the start of the campai$n period, are lawful. In laymanJs lan$ua$e, this means that a candidate is liable for an election offense only for acts done durin$ the campai$n period, not before. 1he law is clear as dayli$ht N any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campai$n period. In rulin$ that 7enera is liable for premature campai$nin$ for partisan political acts before the start of the campai$nin$, the assailed Decision i$nores the clear and e"press provision of the law. 1he Decision rationali!es that a candidate who commits premature campai$nin$ can be dis4ualified or prosecuted only after the start of the campai$n period. 1his is not what the law says. Ihat the law says is Cany unlawful act or omission applicable to a candidate shall ta#e effect only upon the start of the campai$n period.C 1he plain meanin$ of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campai$n period starts. >efore the start of the campai$n period, the same partisan political acts are lawful. 1he law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campai$n period are unlawful, but may be prosecuted only upon the start of the campai$n period. Neither does the law state that partisan political acts done by a candidate before the campai$n period are temporarily lawful, but becomes unlawful upon the start of the campai$n period. 1his is clearly not the lan$ua$e of the law. >esides, such a law as envisioned in the Decision, which defines

a criminal act and curtails freedom of e"pression and speech, would be void for va$ueness. Con$ress has laid down the law N a candidate is liable for election offenses only upon the start of the campai$n period. 1his Court has no power to i$nore the clear and e"press mandate of the law that Cany person who files his certificate of candidacy within Kthe filin$L period shall only be considered a candidate at the start of the campai$n period for which he filed his certificate of candidacy.C Neither can this Court turn a blind eye to the e"press and clear lan$ua$e of the law that Cany unlawful act or omission applicable to a candidate shall ta#e effect only upon the start of the campai$n period.C 1he forum for e"aminin$ the wisdom of the law, and enactin$ remedial measures, is not this Court but the 'e$islature. 1his Court has no recourse but to apply a law that is as clear, concise and e"press as the second sentence, and its immediately succeedin$ proviso, as written in the third para$raph of Section 8- of +3 60),, as amended by +3 9),9. I@E+E O+E, we <+3N1 petitioner +osalinda 3. 7eneraJs &otion for +econsideration. Ie SE1 3SIDE the Decision of this Court in <.+. No. 868,8) promul$ated on 88 September *..9, as well as the +esolutions dated *0 /uly *..A and ). /anuary *..6 of the CO&E'EC Second Division and the CO&E'EC En >anc, respectively, in S73 No. .A=**0. +osalinda 3. 7enera shall continue as &ayor of Sta. &onica, Suri$ao del Norte. SO O+DE+ED.

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G.R. No. 147671

M)& 6, 2001

preference for candidates or publicly discussed issues durin$ the campai$n period %hereafter referred to as CSurveyC(. 1he implement P-.0, +esolution ),),, P*0%h(, dated &arch I, *..8, of the CO&E'EC enjoins F Surveys affectin$ national candidates shall not be published fifteen %8-( days before an election and surveys affectin$ local candidates shall not be published seven %A( days be= fore an election. 7etitioner SIS states that it wishes to conduct an election survey throu$hout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. 7etitioner ;amahalan 7ublishin$ Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on &ay 80,*..8. 7etitioners ar$ue that the restriction on the publication of election survey results constitutes a prior restraint on the e"ercise of freedom of speech without any clear and present dan$er to justify such restraint. 1hey claim that SIS and other pollsters conducted and published the results of surveys prior to the 899*, 899-, and 8996 elections up to as close as two days before the election day without causin$ confusion amon$ the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable dan$er to tile votin$ process posed by election surveys. 1hey point out that no similar restriction is imposed on politicians from e"plainin$ their opinion or on newspapers or broadcast media from writin$ and publishin$ articles concernin$ political issues up to the day of the election. Conse4uently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective.
1 wphi1.n!t

SOCIAL 4EATHER STATIONS, INCOR8ORATE- )#$ ;AMAHALAN 81+LISHING COR8ORATION, $o'#g %us'#!ss )s MANILA STAN-AR- , petitioners, vs. COMMISSION ON ELECTIONS, respondent. MEN-OZA, J.2 7etitioner, Social Ieather Stations, Inc. %SIS(, is a private non= stoc#, non=profit social research institution conductin$ surveys in various fields, includin$ economics, politics, demo$raphy, and social development, and thereafter processin$, analy!in$, and publicly reportin$ the results thereof. On the other hand, petitioner ;amahalan 7ublishin$ Corporation publishes the Manila Standard, a newspaper of $eneral circulation, which features news= worthy items of information includin$ election surveys.
1 wphi1.n!t

7etitioners brou$ht this action for prohibition to enjoin the Commission on Elections from enforcin$ P-.0 of +3. No.9.., % air Election 3ct(, which provides2 Surveys affectin$ national candidates shall not be published fifteen %8-( days before an election and surveys affectin$ local candidates shall not be published seven %A( days be= fore an election. 1he term Celection surveysC is defined in P-.8 of the law as follows2 Election surveys refer to the measurement of opinions and perceptions of the voters as re$ards a candidate?s popularity, 4ualifications, platforms or a matter of public discussion in relation to the election, includin$ voters

14

+espondent Commission on Elections justifies the restrictions in P-.0 of +.3. No. 9.., as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that %8( the prohibition on the publication of election survey results durin$ the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resultin$ from manipulated surveys, bandwa$on effect, and absence of reply5 %*( it is narrowly tailored to meet the CevilsC sou$ht to be prevented5 and %)( the impairment of freedom of e"pression is minimal, the restriction bein$ limited both in duration, i.e., the last 8- days before the national election and the last A days before a local election, and in scope as it does not prohibit election survey results but only re4uire timeliness. +espondent claims that in "ational Press Clu# $. COMELEC, 8 a total ban on political advertisements, with candidates bein$ merely allocated broadcast time durin$ the so=called CO&E'EC space or CO&E'EC hour, was upheld by this Court. In contrast, accordin$ to respondent, it states that the prohibition in P-.0 of +3. No. 9.., is much more limited. or reasons hereunder $iven, we hold that P-.0 of +.3. No. 9.., constitutes an unconstitutional abrid$ment of freedom of speech, e"pression, and the press. 1o be sure, P-.0Iays a prior restraint on freedom of speech, e"pression, and the press prohibitin$ the publication of election survey results affectin$ candidates within the prescribed periods of fifteen %8-( days immediately precedin$ a national election seven %A( days before a local election. >ecause of tile preferred status of tile constitutional ri$hts of speech, e"pression, and he press, such a measure is vitiated by a wei$hty presumption of invalidity.* Indeed, any system of prior restraints of e"pression comes to this Court bearin$ a heavy 7resumption a$ainst its constitutional validity. ...1he <overnment thus carries a heavy burden of showin$ justification for in enforcement of such restraint. C?) 1here, thus a reversal of the normal presumption of validity that inheres in every le$islation.

Nor may it be ar$ued that because of 3rt. IG=C, P0 of the Constitution, which $ives the CO&E'EC supervisory power to re$ulate the enjoyment or utili!ation of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure li#e P-.0. or as we have pointed out in sustainin$ tile ban on media political advertisements, the $rant of power to the CO&E'EC under 3rt. IG=C, P0 is limited to ensurin$ Ce4ual opportunity, time, space, and the ri$ht to replyC as well as uniform and reasonable rates of char$es for the use of such media facilities Cpublic information campai$ns and forums amon$ candidates.C0 1his Court stated2 1he technical effect of 3rticle IG %C( %0( of the Constitution may be seen to be that no presumption of invalidity arises in respect of e"ercises of supervisory or re$ulatory authority on the part of the Comelec for the 7urpose of securin$ e4ual opportunity amon$ candidates for political office, althou$h such supervision or re$ulation may result in so%e li%itation of the ri$hts of free speech and free press.&+ /DS1ICE ;37DN3N dissents. @e rejects as inappropriate the test of clear and present dan$er for determinin$ the validity of P-.0. Indeed, as has been pointed out in Os%e&a $. COMELEC,, this test was ori$inally formulated for the criminal law and only later appropriated for free speech cases. @ence, while it may be useful for determinin$ the validity of laws dealin$ with incitin$ to sedition or incendiary speech, it %ay not #e ade4uate for such re$ulations as the one in 4uestion. or such a test is concerned with 4uestions of the $ravity and imminence of the dan$er as basis for curtailin$ free speech, which is not the case of P-.0 and similar re$ulations. Instead, &+ /DS1ICE ;37DN3N purports to en$a$e in a form of balancin$ by Cwei$hin$ and balancin$ the circumstances to determine whether public interest Kin free, orderly, honest, peaceful and credible electionsL is served by the re$ulation of the free enjoyment of the ri$htsC %pa$e A(. 3fter
15

canvassin$ the reasons for the prohibition , i.e., to prevent last= minute pressure on voters, the creation of bandwa$on effect to favor candidates, misinformation, the jun#in$C of wea# and Closin$C candidates by their parties, and the form of election cheatin$ called Cda$da$=bawasC and invo#in$ the State?s power to supervise media of information durin$ the election period %pa$es 88=8,', the dissentin$ opinion simply concludes2 Hiewed in the li$ht of the le$itimate and si$nificant objectives of Section -.0, It may be seen that its limitin$impact on the ri$hts of free speech and of the press is not unduly repressive or unreasonable. In Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration5 it applies only durin$ the period when the voters are presumably contemplatin$ whom they should elect and when they are most susceptible to such unwarranted persuasion. 1hese surveys may be published thereafter. %7a$es 8A=86( 1he dissent does not, however, show why, on balance, these considerations should outwei$h the value of freedom of e"pression. Instead, reliance is placed on 3rt. IG=C, P0. 3s already stated, the purpose of 3rt. IG=C, P0 is to Censure e4ual opportunity, time, and space and the ri$ht of reply, includin$ reasonable, e4ual rates therefor for public information campai$ns and forums amon$ candidates. C @ence the validity of the ban on media advertisin$. It is noteworthy that +.3. No. 9..,, P 80 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all spea#in$ by candidates in an election on the $round that the usual bombasts and hyperbolic claims made durin$ the campai$ns can confuse voters and thus debase the electoral process. In sum, the dissent has en$a$ed only in a balancin$ at the mar$in. 1his form of ad hoc balancin$ predictably results in

sustainin$ the challen$ed le$islation and leaves freedom of speech, e"pression, and the press with little protection. or anyone who can brin$ a plausible justification forward can easily show a rational connection between the statute and a le$itimate $overnmental purpose. In contrast, the balancin$ of interest underta#en by then /ustice Castro in (on)ales v. COMELEC,* from which the dissent in this case ta#es its cue, was a stron$ one resultin$ in his conclusion that , P-.=> of +.3. No. 066., which limited the period of election campai$n and partisan political activity, was an unconstitutional abrid$ment of freedom of e"pression. Nor can the ban on election surveys be justified on the $round that there are other countries = A6, accordin$ to the Solicitor <eneral, while the dissent cites *6 = which similarly impose restrictions on the publication of election surveys. 3t best this survey is inconclusive. It is note worthy that in the Dnited States no restriction on the publication of election survey results e"ists. It cannot be ar$ued that this is because the Dnited States is a mature democracy. Neither are there laws imposin$ an embar$o on survey results, even for a limited period, in other countries. 3s pointed out by petitioners, the Dnited ;in$dom, 3ustria, >el$ium, Denmar#, Estonia, inland, Iceland, Ireland, 'atvia, &alta, &acedonia, the Netherlands, Norway, Sweden, and D#raine, some of which are no older nor more mature than the 7hilippines in political development, do not restrict the publication of election survey results. Ihat test should then be employed to determine the constitutional validity of P-.0B 1he Dnited States Supreme Court, throu$h Chief /ustice Iarren, held in +nited States $. O ,-rien2 K3L <overnment re$ulation is sufficiently justified K8L if it is within the constitutional power of the <overnment5 K*L if it furthers an important or substantial $overnmental interest5 K)L if the $overnmental interest is unrelated to the suppression of free e"pression5 and K0L if the incidental restriction on alle$ed irst 3mendment freedoms Kof
16

speech, e"pression and pressL is no $reater than is essential to the furtherance of that interest.6 1his is so far the most influential test for distin$uishin$ content= based from content neutral re$ulations and is said to have Cbecome canonical in the review of such laws.C9 is noteworthy that the O ,-rien test has been applied by this Court in at least two cases.8. Dnder this test, even if a law furthers an important or substantial $overnmental interest, it should be invalidated if such $overnmental interest is Cnot unrelated to the E"pression of free e"pression.C &oreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of e"pression is $reater than is necessary to achieve the $overnmental purpose in 4uestion. Our in4uiry should accordin$ly focus on these two considerations as applied to P-.0. Q irst. Sec. -.0 fails to meet criterion K)L of the O ,-rien test because the causal connection of e"pression to the asserted $overnmental interest ma#es such interest Cnot related to the suppression of free e"pression.C >y prohibitin$ the publication of election survey results because of the possibility that such publication mi$ht undermine the inte$rity of the election, P-.0 actually suppresses a whole class of e"pression, while allowin$ the e"pression of opinion concernin$ the same subject matter by newspaper columnists, radio and 1H commentators, armchair theorists, and other opinion ta#ers. In effect, P-.0 shows a bias for a particular subject matter, if not viewpoint, by referrin$ personal opinion to statistical results. 1he constitutional $uarantee of freedom of e"pression means that Cthe $overnment has no power to restrict e"pression because of its messa$e, its ideas, its subject matter, or its content.C 88 1he inhibition of speech should be upheld only if the e"pression falls within one of the few

unprotected cate$ories dealt with in Chaplins.y $. "ew /a%pshire, 8* thus2 1here are certain well=defined and narrowly limited classes of speech, the prevention and punishment of which have never been thou$ht to raise any Constitutional problem. 1hese include the lewd and obscene, the profane, the libelous, and the insultin$ or ?fi$htin$? words = those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. KSLuch utterances are no essential part of any e"position of ideas, and are of such sli$ht social value as a step to truth that any benefit that may be derived from them is clearly outwei$hed by the social interest in order and morality Nor is there justification for the prior restraint which P-.0Iays on protected speech. "ear $. Minnesota,8) it was held2 K1heL protection even as to previous restraint is not absolutely unlimited. >ut the limitation has been reco$ni!ed only in e"ceptional casesR. No one would 4uestion but that a $overnment mi$ht prevent actual obstruction to its recruitin$ service or the publication of the sailin$ dates transports or the number and location of troops. On similar $rounds, the primary re4uirements of decency may be enforced a$ainst obscene publications. 1he security of the community life may be protected a$ainst incitements to acts of violence and overthrow by force of orderly $overnmentR 1hus, contrary to the claim of the Solicitor <eneral, the prohibition imposed by P-.0 cannot be justified on the $round that it is only for a limited period and is only incidental. 1he prohibition may be for a limited time, but the curtailment of the ri$ht of e"pression is direct, absolute, and substantial. It constitutes a total suppression of a cate$ory of speech and is not made less so because it is only for a period of fifteen %8-( days immediately before a national election and seven %A( days immediately before a local election. ..
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1his sufficiently distin$uishes P-.0 from +.3. No. ,,0,, P88%b(, which this Court found to be valid in "ational Press Clu# $. COMELEC,80 and Os%e&a $. COMELEC. 8- or the ban imposed by +.3. No. ,,0,, P88%b( is not only authori!ed by a specific constitutional provision,8, but it also provided an alternative so that, as this Court pointed out in Os%e&a, there was actually no ban but only a substitution of media advertisements by the CO&E'EC space and CO&E'EC hour. Second. Even if the $overnmental interest sou$ht to be promoted is unrelated to the suppression of speech and the resultin$ restriction of free e"pression is only incidental, P-.0 nonetheless fails to meet criterion K0L of the O,-rien test, namely, that the restriction be not $reater than is necessary to further the $overnmental interest. 3s already stated, P-.0 aims at the prevention of last=minute pressure on voters, the creation of bandwa$on effect, Cjun#in$C of wea# or Closin$C candidates, and resort to the form of election cheatin$ called Cda$da$=bawas.C 7raiseworthy as these aims of the re$ulation mi$ht be, they cannot be attained at the sacrifice of the fundamental ri$ht of e"pression, when such aim can be more narrowly pursued by punishin$ unlawful acts, rather than speechbecause of apprehension that such speech creates the dan$er of such evils. 1hus, under the 3dministrative Code of 896A, 8A the CO&E'EC is $iven the power2 1o stop any ille$al activity, or confiscate, tear down, and stop any unlawful, libelous, misleadin$ or false election propa$anda, after due notice and hearin$. 1his is surely a less restrictive means than the prohibition contained in P-.0. 7ursuant to this power of the CO&E'EC, it can confiscate bo$us survey results calculated to mislead voters. Candidates can have their own surveys conducted. No ri$ht of reply can be invo#ed by others. No principle of e4uality is involved. It is a free mar#et to which each candidate brin$s his ideas. 3s for the purpose of the law to prevent bandwa$on effects, it is doubtful whether the <overnment can deal with this

natural=enou$h tendency of some voters. Some voters want to be identified with the Cwinners.C Some are susceptible to the herd mentality. Can these be le$itimately prohibited by suppressin$ the publication of survey results, which are a form of e"pressionB It has been held that CKmereL le$islative preferences or beliefs respectin$ matters of public convenience may well support re$ulation directed at other personal activities, but be insufficient to justify such as diminishes the e"ercise of ri$hts so vital to the maintenance of democratic institutions.C86 1o summari!e then, we hold that P-.0 is invalid because %8( it imposes a prior restraint on the freedom of e"pression, %*( it is a direct and total suppression of a cate$ory of e"pression even thou$h such suppression is only for a limited period, and %)( the $overnmental interest sou$ht to be promoted can be achieved by means other than suppression of freedom of e"pression. On the other hand, the CO&E'EC contends that under 3rt. IG=3, PA of the Constitution, its decisions, orders, or resolution may be reviewed by this Court only certiorari. 1he flaws in this ar$ument is that it assumes that its +esolution ),),, &arch 8, *..8 is a Cdecision, order, or resolutionC within the meanin$ of 3rt. IG=3, PA. Indeed, counsel for CO&E'EC maintain that +esolution ),), was CrenderedC by the Commission. @owever, the +esolution does not purport to adjudicate the ri$ht of any party. It is not an e"ercise by the CO&E'EC of its adjudicatory power to settle the claims of parties. 1o the contrary, +esolution ),), clearly states that it is promul$ated to implement the provisions of +.3. No. 9..,. @ence, there is no basis for CO&E'EC?s claim that this petition for prohibition is inappropriate. 7rohibition has been fund appropriate for testin$ the constitutionality of various election laws, rules, and re$ulations.89 I@E+E O+E, the petition for prohibited <+3N1ED and P-.0 of +.3. No. 9.., P*0%h( of CO&E'EC +esolution ),),, &arch 8, *..8, are declared unconstitutional.
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SO O+DE+ED.

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