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VOL.

545, FEBRUARY 15, 2008 441 seeing as it involves a challenge to the most exalted of all the civil
Chavez vs. Gonzales rights, the
G.R. No. 168338. February 15, 2008. *
_______________
FRANCISCO CHAVEZ, petitioner, vs. RAUL M.
GONZALES, in his capacity as the Secretary of the *EN BANC.
442
Department of Justice; and NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC),
442 SUPREME COURT REPORTS ANNOTATED
respondents. Chavez vs. Gonzales
Judicial Review; Locus Standi; Where serious constitutional freedom of expression.The petition raises other issues like
questions are involved, the transcendental importance to the public the extent of the right to information of the public. It is
of these cases demands that they be settled promptly and definitely, fundamental, however, that we need not address all issues
brushing aside if we must, technicalities of procedure.—Petitioner but only the most decisive one which in the case at bar is
has not met the requisite legal standing, having failed to allege whether the acts of the respondents abridge freedom of
“such a personal stake in the outcome of the controversy as to speech and of the press.
assure that concrete adverseness which sharpens the presentation Freedom of Expression; Hierarchy of Rights; Freedom of
of issues upon which the Court so largely depends for illumination expression has gained recognition as a fundamental principle of
of difficult constitutional questions.” But as early as half a century every democratic government, and given a preferred right that
ago, we have already held that where serious constitutional stands on a higher level than substantive economic freedom or other
questions are involved, “the transcendental importance to the liberties.—Freedom of expression has gained recognition as a
public of these cases demands that they be settled promptly and fundamental principle of every democratic government, and given
definitely, brushing aside if we must, technicalities of procedure.” a preferred right that stands on a higher level than substantive
Subsequently, this Court has repeatedly and consistently refused economic freedom or other liberties. The cognate rights codified by
to wield procedural barriers as impediments to its addressing and Article III, Section 4 of the Constitution, copied almost verbatim
resolving serious legal questions that greatly impact on public from the First Amendment of the U.S. Bill of Rights, were
interest, in keeping with the Court’s duty under the 1987 considered the necessary consequence of republican institutions
Constitution to determine whether or not other branches of and the complement of free speech. This preferred status of free
government have kept themselves within the limits of the speech has also been codified at the international level, its
Constitution and the laws and that they have not abused the recognition now enshrined in international law as a customary
discretion given to them. norm that binds all nations.
Same; Freedom of Expression; In line with the liberal policy of Same; Same; In the Philippines, the primacy and high esteem
the Supreme Court on locus standi when a case involves an issue of accorded freedom of expression is a fundamental postulate of our
overarching significance to our society, the Court brushes aside constitutional system; It is only when the people have unbridled
technicalities of procedure and takes cognizance of the instant access to information and the press that they will be capable of
petition, seeing as it involves a challenge to the most exalted of all rendering enlightened judgments—we cannot both be free and
the civil rights, the freedom of expression.—In line with the liberal ignorant.—In the Philippines, the primacy and high esteem
policy of this Court on locus standiwhen a case involves an issue of accorded freedom of expression is a fundamental postulate of our
overarching significance to our society, we therefore brush aside constitutional system. This right was elevated to constitutional
technicalities of procedure and take cognizance of this petition, status in the 1935, the 1973 and the 1987 Constitutions, reflecting
our own lesson of history, both political and legal, that freedom of
speech is an indispensable condition for nearly every other form of
freedom. Moreover, our history shows that the struggle to protect freedom of film, television and radio broadcasting is somewhat
the freedom of speech, expression and the press was, at bottom, the lesser in scope than the freedom accorded to newspapers and other
struggle for the indispensable preconditions for the exercise of other print media, as will be subsequently discussed.—The scope of
freedoms. For it is only when the people have unbridled access to freedom of expression is so broad that it extends protection to nearly
information and the press that they will be capable of rendering all forms of communication. It protects speech, print and assembly
enlightened judgments. In the oft-quoted words of Thomas regarding secular as well as political causes, and is not confined to
Jefferson, we cannot both be free and ignorant. any particular field of human interest. The protection covers
443 myriad matters of public interest or concern embracing all issues,
VOL. 545, FEBRUARY 15, 2008 443 about which information is needed or appropriate, so as to enable
Chavez vs. Gonzales members of society to cope with the exigencies of their period. The
Same; Freedom of the Press; To be truly meaningful, freedom of constitutional protection assures the broadest possible exercise of
speech and of the press should allow and even encourage the free speech and free press
articulation of the unorthodox view, though it be hostile to or derided 444
by others, or though such view “induces a condition of unrest, creates 444 SUPREME COURT REPORTS ANNOTATED
dissatisfaction with conditions as they are, or even stirs people to Chavez vs. Gonzales
anger.”—Freedom of speech and of the press means something more for religious, political, economic, scientific, news, or
than the right to approve existing political beliefs or economic informational ends, inasmuch as the Constitution’s basic guarantee
arrangements, to lend support to official measures, and to take of freedom to advocate ideas is not confined to the expression of
refuge in the existing climate of opinion on any matter of public ideas that are conventional or shared by a majority. The
consequence. When atrophied, the right becomes meaningless. The constitutional protection is not limited to the exposition of ideas.
right belongs as well—if not more—to those who question, who do The protection afforded free speech extends to speech or
not conform, who differ. The ideas that may be expressed under this publications that are entertaining as well as instructive or
freedom are confined not only to those that are conventional or informative. Specifically, in Eastern Broadcasting Corporation
acceptable to the majority. To be truly meaningful, freedom of (DYRE) v. Dans, 137 SCRA 628 (1985), this Court stated that all
speech and of the press should allow and even encourage the forms of media, whether print or broadcast, are entitled to the broad
articulation of the unorthodox view, though it be hostile to or protection of the clause on freedom of speech and of expression.
derided by others; or though such view “induces a condition of While all forms of communication are entitled to the broad
unrest, creates dissatisfaction with conditions as they are, or even protection of freedom of expression clause, the freedom of film,
stirs people to anger.” To paraphrase Justice Holmes, it is freedom television and radio broadcasting is somewhat lesser in
for the thought that we hate, no less than for the thought that scope than the freedom accorded to newspapers and other
agrees with us. print media, as will be subsequently discussed.
Same; Same; Relativity of Liberties and Freedoms; The scope of Same; Same; Tests for Restraints on Freedom of Speech and
freedom of expression is so broad that it extends protection to nearly Expression.—Generally, restraints on freedom of speech and
all forms of communication—it protects speech, print and assembly expression are evaluated by either or a combination of three
regarding secular as well as political causes, and is not confined to tests, i.e., (a) the dangerous tendency doctrine which permits
any particular field of human interest; The constitutional protection limitations on speech once a rational connection has been
is not limited to the exposition of ideas—the protection afforded free established between the speech restrained and the danger
speech extends to speech or publications that are entertaining as well contemplated; (b) the balancing of interests tests, used as a
as instructive or informative; While all forms of communication are standard when courts need to balance conflicting social values and
entitled to the broad protection of freedom of expression clause, the individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given Same; Same; Four Aspects of Freedom of the Press.—
situation of type of situation; and (c) the clear and present Philippine jurisprudence, even as early as the period under the
danger rule which rests on the premise that speech may be 1935 Constitution, has recognized four aspects of freedom of the
restrained because there is substantial danger that the speech will press. These are (1) freedom from prior restraint; (2) freedom from
likely lead to an evil the government has a right to prevent. This punishment subsequent to publication; (3) freedom of access to
rule requires that the evil consequences sought to be prevented information;and (4) freedom of circulation.
must be substantive, “extremely serious and the degree of Same; Same; Prior Restraint; Words and Phrases; Prior
imminence extremely high.”As articulated in our jurisprudence, we restraint refers to official governmental restrictions on the press or
have applied either the dangerous tendency doctrine or clear other forms of expression in advance of actual publication or
and present danger test to resolve free speech challenges. More dissemination; Freedom from prior restraint is largely freedom from
recently, we have concluded that we have generally adhered to government censorship of publications, whatever the form of
the clear and present danger test. censorship, and regardless of whether it is wielded by the executive,
Same; Same; The press is the chief source of information on legislative or judicial branch of the government.—Prior
current affairs, the most pervasive and perhaps most powerful restraint refers to official governmental restrictions on the press
vehicle of opinion on public questions, the instrument by which or other forms of expression in advance of actual publication or
citizens keep their government informed of their needs, their dissemination. Freedom from prior restraint is largely freedom
aspirations and their from government censorship of publications, whatever the form of
445 censorship, and regardless of whether it is wielded by the executive,
VOL. 545, FEBRUARY 15, 2008 445 legislative or judicial branch of the government. Thus, it precludes
Chavez vs. Gonzales governmental acts that required approval of a proposal to publish;
grievances—it is the sharpest weapon in the fight to keep licensing or permits as prerequisites to publication including the
government responsible and efficient.—Much has been written on payment of license taxes
the philosophical basis of press freedom as part of the larger right 446
of free discussion and expression. Its practical importance, though, 446 SUPREME COURT REPORTS ANNOTATED
is more easily grasped. It is the chief source of information on Chavez vs. Gonzales
current affairs. It is the most pervasive and perhaps most powerful for the privilege to publish; and even injunctions against
vehicle of opinion on public questions. It is the instrument by which publication. Even the closure of the business and printing offices of
citizens keep their government informed of their needs, their certain newspapers, resulting in the discontinuation of their
aspirations and their grievances. It is the sharpest weapon in the printing and publication, are deemed as previous restraint or
fight to keep government responsible and efficient. Without a censorship. Any law or official that requires some form of
vigilant press, the mistakes of every administration would go permission to be had before publication can be made, commits an
uncorrected and its abuses unexposed. As Justice Malcolm wrote infringement of the constitutional right, and remedy can be had at
in United States v. Bustos, 37 Phil. 731 (1918): The interest of the courts.
society and the maintenance of good government demand a full Same; Same; Same; Certain previous restraints may be
discussion of public affairs. Complete liberty to comment on the permitted by the Constitution, but determined only upon a careful
conduct of public men is a scalpel in the case of free speech. The evaluation of the challenged act as against the appropriate test by
sharp incision of its probe relieves the abscesses of officialdom. Men which it should be measured against.—Given that deeply ensconced
in public life may suffer under a hostile and unjust accusation; the in our fundamental law is the hostility against all prior restraints
wound can be assuaged with the balm of clear conscience. on speech, and any act that restrains speech is presumed invalid,
and “any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows,” it is governmental interest; if the governmental interest is unrelated to
important to stress not all prior restraints on speech are the suppression of free expression; and if the incident restriction on
invalid. Certain previous restraints may be permitted by the alleged [freedom of speech & expression] is no greater than is
Constitution, but determined only upon a careful evaluation of the essential to the furtherance of that interest.
challenged act as against the appropriate test by which it should be Same; Same; Same; Same; Same; A governmental action that
measured against. restricts freedom of speech or of the press based on content is given
Same; Same; Same; Words and Phrases; “Content-Neutral” the strictest scrutiny in light of its inherent and invasive impact, and
and “Content-Based” Regulations, Distinguished.—It is not enough only when the challenged act has overcome the clear and present
to determine whether the challenged act constitutes some form of danger rule will it pass constitutional muster, with the government
restraint on freedom of speech. A distinction has to be made having the burden of overcoming the presumed
whether the restraint is (1) a content-neutral regulation, i.e., unconstitutionality.—On the other hand, a governmental action
merely concerned with the incidents of the speech, or one that that restricts freedom of speech or of the press based on content is
merely controls the time, place or manner, and under well defined given the strictest scrutiny in light of its inherent and invasive
standards; or (2) a content-based restraint or censorship, i.e., the impact. Only when the challenged act has overcome the clear and
restriction is based on the subject matter of the utterance or speech. present danger rule will it pass constitutional muster, with the
The cast of the restriction determines the test by which the government having the burden of overcoming the presumed
challenged act is assayed with. unconstitutionality. Unless the government can overthrow this
Same; Same; Same; Content-Based and Content-Neutral presumption, the content-based restraint will be struck down.
Regulations; Standards of Review; When the speech restraints take Same; Same; Same; Press and Broadcast Media Dichotomy;
the form of a content-neutral regulation, only a substantial Reasons; The dichotomy between print and broadcast media traces
governmental interest is required for its validity.—When the speech its origins in the United States—there, broadcast radio and
restraints take the form of a content-neutral regulation, only a television have been held to have limited First Amendment
substantial governmental interest is required for its validity. protection, and U.S. Courts have excluded broadcast media from the
Because regulations of this type are not designed to suppress any application of the “strict scrutiny” standard that they would
particular message, they are not subject to the strictest form of otherwise apply to contentbased restrictions; The three major
judicial scrutiny but an in- reasons why broadcast media stands apart from print media are: (a)
447 the scarcity of the frequencies by which the medium operates [i.e.,
VOL. 545, FEBRUARY 15, 2008 447 airwaves are physically limited while print medium may be
Chavez vs. Gonzales limitless]; (b) its “pervasiveness” as a medium; and (c) its unique
termediate approach—somewhere between the mere accessibility to children.—The regimes
rationality that is required of any other law and the compelling 448
interest standard applied to content-based restrictions. The test is 448 SUPREME COURT REPORTS ANNOTATED
called intermediate because the Court will not merely Chavez vs. Gonzales
rubberstamp the validity of a law but also require that the presently in place for each type of media differ from one
restrictions be narrowly-tailored to promote an important or other.Contrasted with the regime in respect of books, newspapers,
significant governmental interest that is unrelated to the magazines and traditional printed matter, broadcasting, film and
suppression of expression. The intermediate approach has been video have been subjected to regulatory schemes. The dichotomy
formulated in this manner: A governmental regulation is between print and broadcast media traces its origins in the United
sufficiently justified if it is within the constitutional power of the States. There, broadcast radio and television have been held to
Government, if it furthers an important or substantial have limited First Amendment protection, and U.S. Courts
have excluded broadcast media from the application of the “strict regulatory schemes that broadcast media is subjected to, the Court
scrutiny” standard that they would otherwise apply to content- has consistently held that the clear and present danger test applies
based restrictions. According to U.S. Courts, the three major to content-based restrictions on media, without making a
reasons why broadcast media stands apart from print media are: distinction as to traditional print or broadcast media.
(a) the scarcity of the frequencies by which the medium operates Same; Same; Same; Same; Cable Television; Digital
[i.e., airwaves are physically limited while print medium may be Technology; While historically, the scarcity of frequencies was
limitless]; (b) its “pervasiveness” as a medium; and (c) its unique thought to provide a rationale, cable and satellite television have
accessibility to children. Because cases involving broadcast media enormously increased the number of actual and potential
need not follow “precisely the same approach that [U.S. courts] have channels—digital technology will further increase the number of
applied to other media,” nor go “so far as to demand that such channels available; Modern developments show a need for a
regulations serve ‘compelling’ government interests,” they are reexamination of the traditional notions of the scope and extent of
decided on whether the “governmental restriction” is broadcast media regulation.—Parenthetically, these justifications
narrowly tailored to further a substantial governmental are now the subject of debate. Historically, the scarcity of
interest,” or the intermediate test. frequencies was thought to provide a rationale. However, cable
Same; Same; Same; Same; While Philippine jurisprudence has and satellite television have enormously increased the number
also echoed a differentiation in treatment between broadcast and of actual and potential channels. Digital technology will further
print media, a review of Philippine case law on broadcast media will increase the number of channels available. But still, the argument
show that—as we have deviated with the American conception of the persists that broadcasting is the most influential means of
Bill of Rights—we likewise did not adopt en masse the U.S. communication, since it comes into the home, and so much time is
conception of free speech as it relates to broadcast media, spent watching television. Since it has a unique impact on people
particularly as to which test would govern content-based prior and affects children in a way that the print media normally does
restraints.—As pointed out by respondents, Philippine not, that regulation is said to be necessary in order to preserve
jurisprudence has also echoed a differentiation in treatment pluralism. It has been argued further that a significant main threat
between broadcast and print media. Nevertheless, a review of to free expression—in terms of diversity—comes not from
Philippine case law on broadcast media will show that—as government, but from private corporate bodies. These
we have deviated with the American conception of the Bill developments show a need for a reexamination of the traditional
of Rights—we likewise did not adopt en masse the U.S. notions of the scope and extent of broadcast media regulation.
conception of free speech as it relates to broadcast Same; Same; Same; Same; Same; Internet; The emergence of
media, particularly as to which test would govern content- digital technology—which has led to the convergence of
based prior restraints. Our cases show two distinct features of broadcasting, telecommunications and the computer industry—has
this dichotomy. First, the difference in treatment, in the main, is likewise led to the question of whether the regulatory model for
in the regulatory scheme applied to broadcast media that is not broadcasting will continue to be appropriate in the converged
imposed on traditional print media, and narrowly confined to environment; Internet, for example, remains largely unregulated, yet
unprotected speech (e.g., obscenity, pornography, seditious and the Internet and the broadcast media share similarities, and the
449 rationales used to support broadcast regulation apply equally to the
VOL. 545, FEBRUARY 15, 2008 449 Internet.—The emergence of digital technology—which has led to
Chavez vs. Gonzales the convergence of broadcasting, telecommunications and the
inciting speech), or is based on a compelling government computer industry—has likewise
interest that also has constitutional protection, such as national 450
security or the electoral process. Second, regardless of the 450 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales to private and public interest must be calibrated in light of the
led to the question of whether the regulatory model for preferred
broadcasting will continue to be appropriate in the converged 451
environment.Internet, for example, remains largely unregulated, VOL. 545, FEBRUARY 15, 2008 451
yet the Internet and the broadcast media share similarities, and the Chavez vs. Gonzales
rationales used to support broadcast regulation apply equally to the status accorded by the Constitution and by related
Internet. Thus, it has been argued that courts, legislative bodies international covenants protecting freedom of speech and of the
and the government agencies regulating media must agree to press; The need to prevent the violation of laws cannot per se trump
regulate both, regulate neither or develop a new regulatory the exercise of free speech and free press, a preferred right whose
framework and rationale to justify the differential treatment. breach can lead to greater evils.—We rule that not every violation
Same; Same; Same; Privacy of Communications; Anti- of a law will justify straitjacketing the exercise of freedom
Wiretapping Act (R.A. No. 4200); Garci Tapes; Given all the of speech and of the press. Our laws are of different kindsand
unsettled facets of the Garci tape, it is even arguable whether its doubtless, some of them provide norms of conduct which even if
airing would violate the anti-wiretapping law.—This outlines violated have only an adverse effect on a person’s private comfort
the procedural map to follow in cases like the one at bar as it but does not endanger national security. There are laws of great
spells out the following: (a) the test; (b) the presumption; (c) the significance but their violation, by itself and without more,
burden of proof; (d) the party to discharge the burden; and (e) the cannot support suppression of free speech and free press. In
quantum of evidence necessary. On the basis of the records of the fine, violation of law is just a factor, a vital one to be sure, which
case at bar, respondents who have the burden to show that these should be weighed in adjudging whether to restrain freedom of
acts do not abridge freedom of speech and of the press failed to speech and of the press. The totality of the injurious effects of
hurdle the clear and present danger test. It appears that the great the violation to private and public interest must be calibrated in
evil which government wants to prevent is the airing of a tape light of the preferred status accorded by the Constitution and by
recording in alleged violation of the anti-wiretapping law. The related international covenants protecting freedom of speech and of
records of the case at bar, however, are confused and confusing, and the press. In calling for a careful and calibrated measurement of the
respondents’ evidence falls short of satisfying the clear and present circumference of all these factors to determine compliance with the
danger test. Firstly, the various statements of the Press Secretary clear and present danger test, the Court should not be
obfuscate the identity of the voices in the tape recording. Secondly, misinterpreted as devaluing violations of law. By all means,
the integrity of the taped conversation is also suspect. The Press violations of law should be vigorously prosecuted by the State for
Secretary showed to the public two versions, one supposed to be a they breed their own evil consequence. But to repeat, the need to
“complete” version and the other, an “altered” version. Thirdly, the prevent their violation cannot per se trump the exercise of
evidence of the respondents on the who’s and the how’s of the free speech and free press, a preferred right whose breach
wiretapping act is ambivalent, especially considering the tape’s can lead to greater evils. For this failure of the respondents alone
different versions. The identity of the wiretappers, the manner of to offer proof to satisfy the clear and present danger test, the Court
its commission and other related and relevant proofs are some of has no option but to uphold the exercise of free speech and free
the invisibles of this case. Fourthly, given all these unsettled press. There is no showing that the feared violation of the anti-
facets of the tape, it is even arguable whether its airing would wiretapping law clearly endangers the national security of the
violate the anti-wiretapping law. State.
Same; Same; Same; Same; Same; Same; Not every violation of Same; Same; Same; Same; Same; Same; It is not decisive that
a law will justify straitjacketing the exercise of freedom of speech the press statements made by Secretary of Justice and the National
and of the press—the totality of the injurious effects of the violation Telecommunications Commission were not reduced in or followed up
with formal orders or circulars—it is sufficient that the press from no less the NTC, a regulatory agency that can cancel the
statements were made by them while in the exercise of their official Certificate of Authority of the radio and broadcast media. They also
functions; Any act done, such as a speech uttered, for and on behalf came from the Secretary of Justice, the alter ego of the Executive,
of the government in an official capacity is covered by the rule on who wields the awesome power to prosecute those perceived to be
prior restraint—the concept of an “act” does not limit itself to acts violating the laws of the land. After the warnings, the KBP
already converted to a formal order or official circular.—This is not inexplicably joined the NTC in issuing an ambivalent Joint Press
all the Statement. After the warnings, petitioner Chavez was left alone to
452 fight this battle for freedom of speech and of the press. This silence
452 SUPREME COURT REPORTS ANNOTATED on the sidelines on the part of some media practitioners is too
Chavez vs. Gonzales deafening to be the subject of misinterpretation.
faultline in the stance of the respondents. We slide to the issue 453
of whether the mere press statements of the Secretary of Justice VOL. 545, FEBRUARY 15, 2008 453
and of the NTC in question constitute a form of content-based prior Chavez vs. Gonzales
restraint that has transgressed the Constitution. In resolving this Same; Judicial Review; In cases where the challenged acts are
issue, we hold that it is not decisive that the press statements patent invasions of a constitutionally protected right, the Court
made by respondents were not reduced in or followed up should be swift in striking them down as nullities per se—a blow too
with formal orders or circulars. It is sufficient that the press soon struck for freedom is preferred than a blow too late.—The
statements were made by respondents while in the exercise constitutional imperative for us to strike down unconstitutional
of their official functions. Undoubtedly, respondent Gonzales acts should always be exercised with care and in light of the distinct
made his statements as Secretary of Justice, while the NTC issued facts of each case. For there are no hard and fast rules when it
its statement as the regulatory body of media. Any act done, such comes to slippery constitutional questions, and the limits and
as a speech uttered, for and on behalf of the government in construct of relative freedoms are never set in stone. Issues
an official capacity is covered by the rule on prior restraint. revolving on their construct must be decided on a case to case basis,
The concept of an “act” does not limit itself to acts already always based on the peculiar shapes and shadows of each case. But
converted to a formal order or official circular. Otherwise, in cases where the challenged acts are patent invasions of a
the non formalization of an act into an official order or constitutionally protected right, we should be swift in striking
circular will result in the easy circumvention of the them down as nullities per se. A blow too soon struck for
prohibition on prior restraint. The press statements at bar are freedom is preferred than a blow too late.
acts that should be struck down as they constitute impermissible
forms of prior restraints on the right to free speech and press. SANDOVAL-GUTIERREZ, J., Concurring Opinion:
Same; Same; Same; Same; Same; Same; Chilling Effect
Principle; There is enough evidence of chilling effect of the Freedom of Expression; Freedom of the Press; Prior
complained acts on record—the warnings given to media came from Restraint; Garci Tapes; The threat of suspension, revocation and/or
no less the National Telecommunications Commission (NTC), a cancellation of the licenses or authorization hurled against radio
regulatory agency that can cancel the Certificate of Authority of the and television stations should they air the Garci Tape is definitely a
radio and broadcast media, and they also came from the Secretary form of prior restraint.—The threat of suspension,
of Justice, the alter ego of the Executive, who wields the awesome revocation and/or cancellation of
power to prosecute those perceived to be violating the laws of the the licenses or authorization hurled against radio and television
land.—There is enough evidence of chilling effect of the stations should they air the Garci Tape is definitely a form of prior
complained acts on record. The warnings given to media came restraint. The license or authorization is the life of every media
station. If withheld from them, their very existence is lost. Surely, the judge. In other similar cases, the doctrine of prior restraint was
no threat could be more discouraging to them than the suspension frowned upon by the U.S. Court as it struck down loosely drawn
or revocation of their licenses. In Far Eastern Broadcasting v. Dans, statutes and ordinances requiring licenses to hold meetings and
137 SCRA 628 (1985), while the need for licensing was rightly parades and to distribute literature, with uncontrolled discretion in
defended, the defense was for the purpose, not of regulation of the licensor whether or not to issue them, and as it voided other
broadcast content, but for the proper allocation of airwaves. In restrictions on First Amendment rights. Then there came the
the present case, what the NTC intends to regulate are the contents doctrine that prior licensing or permit systems were held to be
of the Garci Tapes—the alleged taped conversation involving the constitutionally valid so long as the discretion of the issuing official
President of the Philippines and a Commissioner of the Commission is limited to questions of times, places and manners. And in New
on Election. The reason given is that it is a “false information or York Times Company v. United States, 403 U.S. 713. (1971), the
willful misrepresentation.” As aptly stated by Mr. Justice Antonio same Court, applying the doctrine of prior restraint
T. Carpio that “the NTC action in restraining the airing of the Garci from Near, considered the claims that the publication of the
Tapes is a content-based prior restraint because it is directed at the Pentagon Papers concerning the Vietnam War would interfere with
message of the Garci Tapes.” foreign policy and prolong the war too speculative. It held that such
454 claim could not overcome the strong presumption against prior
454 SUPREME COURT REPORTS ANNOTATED restraints. Clearly, content-based prior restraint is highly
Chavez vs. Gonzales abhorred in every jurisdiction.
Same; Same; Same; Same; Content-Based 455
Regulations; History teaches us that licensing has been one of the VOL. 545, FEBRUARY 15, 2008 455
most potent tools of censorship; Clearly, content-based prior Chavez vs. Gonzales
restraint is highly abhorred in every jurisdiction.—History teaches Same; Same; Same; Same; Same; Any action of the government
us that licensing has been one of the most potent tools of censorship. by means of which it might prevent free and general discussion of
This powerful bureaucratic system of censorship in Medieval public matters as seems absolutely essential to prepare the people for
Europe was the target of John Milton’s speech Areopagita to the an intelligent exercise of their rights as citizens.—Another
Parliament of England in 1644. Under the Licensing Act of 1643, objectionable portion of the NTC’s Press Release is the warning that
all printing presses and printers were licensed and nothing could it will not hesitate to apply with full force the provisions of
be published without the prior approval of the State or the Church the Circulars and their accompanying sanctions on erring
Authorities. Milton vigorously opposed it on the ground of freedom radio and television stations and their
of the press. His strong advocacy led to its collapse in 1695. In the owners/operators. This is a threat of a subsequent punishment,
U.S., the first encounter with a law imposing a prior restraint is an equally abhorred form of censorship. This should not also be
in Near v. Minnesota, 283 U.S. 697 (1931). Here, the majority countenanced. It must be stressed that the evils to be prevented are
voided the law authorizing the permanent enjoining of future not the censorship of the press merely, but any action of the
violations by any newspaper or periodical if found to have published government by means of which it might prevent such free
or circulated an “obscene, lewd and lascivious” or “malicious, and general discussion of public matters as seems
scandalous and defamatory” issue. While the dissenters maintained absolutely essential to prepare the people for an intelligent
that the injunction constituted no prior restraint, inasmuch as that exercise of their rights as citizens. There is logic in the
doctrine applied to prohibitions of publication without advance proposition that the liberty of the press will be rendered
approval of an executive official, the majority deemed the difference a “mockery and a delusion” if, while every man is at liberty to
of no consequence, since in order to avoid a contempt citation, the publish what he pleases, the public authorities might nevertheless
newspaper would have to clear future publications in advance with punish him for harmless publications. In this regard, the fear of
subsequent punishment has the same effect as that of prior darkness is not an alternative course. People ought to know the
restraint. truth. Yes, the airing of the Garci Tapes may have serious impact,
Same; Same; Same; Same; Same; To prevent the airing of the but this is not a valid basis for suppressing it. As Justice Douglas
Garci Tapes on the premise that their contents may or may not be explained in his concurring opinion in the New York Times, “the
true is not a valid reason for its suppression.—To prevent the airing dominant purpose of the First Amendment was to prohibit
of the Garci Tapeson the premise that their contents may or may the widespread practice of governmental suppression of
not be true is not a valid reason for its suppression. In New York embarrassing information. A debate of large proportions
Times v. Sullivan, 376 U.S. 254 (1964), Justice William Brennan, goes in the nation over our posture in Vietnam. Open debate
Jr. states that the authoritative interpretation of the First and discussion of public issues are vital to our national
Amendment guarantees have consistently refused to recognize an health.”
exception for any test of truth—whether administered by judges, Same; Same; Same; The struggle for freedom of expression is as
jurists, or administrative officials—and especially not one that puts ancient as the history of censorship—from the ancient time when
the burden of proving truth on the speaker. He stressed that “the Socrates was poisoned for his unorthodox views to the more recent
constitutional protection does not turn upon the truth, Martial Law Regime in our country, the lesson learned is that
popularity, or social utility of the ideas and belief which are censorship is the biggest obstacle to human progress.—Burke once
offered.” Moreover, the fact that the tapes were obtained through called the Press the Fourth Estatein the Parliament. This is because
violation of the AntiWiretapping Law does not make the broadcast its ability to influence public opinion made it an important source
media privy to the crime. It must be stressed that it was a in the governance of a nation. It is considered one of the foundations
government official who initially released theGarci of a democratic society. One sign of its importance is that when a
Tapes, not the media. tyrant takes over a country, his first act is to muzzle the
Same; Same; Same; Same; Same; Right to press. Courts should therefore be wary in resolving cases
Information; Suffrage; The right of the people to know matters that has implication on the freedom of the press—to the end
pertaining to the integ- that the freedom will never be curtailed absent a recognized and
456 valid justification. In fine let it be said that the struggle for freedom
456 SUPREME COURT REPORTS ANNOTATED of expression is as ancient as the history of censorship. From the
Chavez vs. Gonzales ancient time when Socrates was poisoned for his unorthodox views
rity of the election process is of paramount importance—election to the more recent Martial Law Regime in our country, the lesson
is a sacred instrument of democracy.—The right of the people to learned is that cen-
know matters pertaining to the integrity of the election 457
process is of paramount importance. It cannot be sideswiped VOL. 545, FEBRUARY 15, 2008 457
by the mere speculation that a public disturbance will Chavez vs. Gonzales
ensue. Election is a sacred instrument of democracy. sorship is the biggest obstacle to human progress. Let us not
Through it, we choose the people who will govern us. We repeat our sad history. Let us not be victims again now and in the
entrust to them our businesses, our welfare, our children, future.
our lives. Certainly, each one of us is entitled to know how it was
conducted. What could be more disheartening than to learn that CARPIO,J., Separate Concurring Opinion:
there exists a tape containing conversations that compromised the
integrity of the election process. The doubt will forever hang over Freedom of Expression; Chilling Effect Principle; Judicial
our heads, doubting whether those who sit in government are Review; Locus Standi; Facial Challenges; When the issue involves
legitimate officials. In matters such as these, leaving the people in freedom of expression, any citizen has the right to bring suit to
question the constitutionality of a government action in violation of Freedom of expression allows the competition of ideas, the clash of
freedom of expression, whether or not the government action is claims and counterclaims, from which the truth will likely emerge.
directed at such citizen—the government action may chill into Freedom of expression allows the airing of social grievances,
silence those to whom the action is directed.—Petitioner has mitigating sudden eruptions of violence from marginalized groups
standing to file this petition. When the issue involves freedom of who otherwise would not be heard by government. Freedom of
expression, as in the present case, any citizen has the right to bring expression provides a civilized way of engagement among political,
suit to question the constitutionality of a government action in ideological, religious or ethnic opponents for if one cannot use his
violation of freedom of expression, whether or not the government tongue to argue, he might use his fist instead.
action is directed at such citizen. The government action may chill Same; Prior Restraint; Content-Based Regulations; The
into silence those to whom the action is directed. Any citizen must exceptions, when expression may be subject to prior restraint, apply
be allowed to take up the cudgels for those who have been cowed in this jurisdiction to only four categories of expression, namely:
into inaction because freedom of expression is a vital public right pornography, false or misleading advertisement, advocacy of
that must be defended by everyone and anyone. Freedom of imminent lawless action, and danger to national security—all other
expression, being fundamental to the preservation of a free, open expression is not subject to prior restraint; Expression not subject to
and democratic society, is of transcendental importance that must prior restraint is protected expression or high-value expression, and
be defended by every patriotic citizen at the earliest opportunity. any content-based prior restraint on protected expression is
We have held that any concerned citizen has standing to raise an unconstitutional without exception.—The exceptions, when
issue of transcendental importance to the nation, and petitioner in expression may be subject to prior restraint, apply in this
this present petition raises such issue. jurisdiction to only four categories of expression, namely:
Same; Freedom of expression is an indispensable condition to pornography, false or misleading advertisement, advocacy of
the exercise of almost all other civil and political rights; Freedom of imminent lawless action, and danger to national security. All
expression provides a civilized way of engagement among political, other expression is not subject to prior restraint.As stated
ideological, religious or ethnic opponents for if one cannot use his in Turner Broadcasting System v. Federal Communication
tongue to argue, he might use his fist instead.—Freedom of Commission, 512 U.S. 622 (1994), “[T]he First Amendment (Free
expression is the foundation of a free, open and democratic society. Speech Clause), subject only to narrow and well understood
Freedom of expression is an indispensable condition to the exercise exceptions, does not countenance governmental control over the
of almost all other civil and political rights. No society can remain content of messages expressed by private individuals.” Expression
free, open and democratic without freedom of expression. Freedom not subject to prior restraint is protected expression or high-
of expression guarantees full, spirited, and even contentious value expression. Any content-based prior restraint on
discussion of all social, economic and political issues. To survive, a protected expression is unconstitutional without exception. A
free and democratic society must zealously safeguard freedom of protected expression means what it says—it is absolutely protected
expression. Freedom of expression allows citizens to expose and from censorship. Thus, there can be no prior restraint on public
check abuses of public officials. Freedom of expression allows debates on the amendment or repeal of existing laws, on the
citizens to make informed choices of candidates for public office. ratification of treaties, on the imposition of new tax measures, or on
Freedom of expression proposed amendments to the Constitution.
458 Same; Same; While only unprotected expression may be subject
458 SUPREME COURT REPORTS ANNOTATED to prior restraint, any such prior restraint on unprotected expression
Chavez vs. Gonzales must hurdle a high barrier—first, such prior restraint is presumed
crystallizes important public policy issues, and allows citizens 459
to participate in the discussion and resolution of such issues. VOL. 545, FEBRUARY 15, 2008 459
Chavez vs. Gonzales the expression cannot be subject to the lesser restriction of
unconstitutional, and, second, the government bears a heavy subsequent punishment, logically it cannot also be subject to the
burden of proving the constitutionality of the prior restraint.— more severe restriction of prior restraint. Thus,
Expression that may be subject to prior restraint is unprotected 460
expression or low-value expression. By definition, prior restraint 460 SUPREME COURT REPORTS ANNOTATED
on unprotected expression is content-based since the restraint is Chavez vs. Gonzales
imposed because of the content itself. In this jurisdiction, there are since profane language or “hate speech” against a religious
currently only four categories of unprotected expression that may minority is not subject to subsequent punishment in this
be subject to prior restraint. This Court recognized false or jurisdiction, such expression cannot be subject to prior restraint.
misleading advertisement as unprotected expression only in Same; Same; Prior Restraint; Garci Tapes; Suffrage; The
October 2007. Only unprotected expression may be subject to public airing of the Garci Tapes is a protected expression because it
prior restraint.However, any such prior restraint on unprotected does not fall under any of the four existing categories of unprotected
expression must hurdle a high barrier. First, such prior restraint expression recognized in this jurisdiction—it is essentially a political
is presumed unconstitutional. Second, the government bears a expression because it exposes that a presidential candidate had
heavy burden of proving the constitutionality of the prior restraint. allegedly improper conversations with a COMELEC Commissioner
Courts will subject to strict scrutiny any government action right after the close of voting in the last presidential elections; If ever
imposing prior restraint on unprotected expression. The there is a hierarchy of protected expressions, political expression
government action will be sustained if there is a compelling State would occupy the highest rank, and among different kinds of
interest, and prior restraint is necessary to protect such State political expression, the subject of fair and honest elections would be
interest. In such a case, the prior restraint shall be narrowly at the top.—The public airing of the Garci Tapes is a protected
drawn—only to the extent necessary to protect or attain the expression because it does not fall under any of the four existing
compelling State interest. categories of unprotected expression recognized in this jurisdiction.
Same; Same; Subsequent Punishment; While there can be no The airing of the Garci Tapes is essentially a political expression
prior restraint on protected expression, such expression may be because it exposes that a presidential candidate had allegedly
subject to subsequent punishment, either civilly or criminally; improper conversations with a COMELEC Commissioner right
Similarly, if the unprotected expression does not warrant prior after the close of voting in the last presidential elections. Obviously,
restraint, the same expression may still be subject to subsequent the content of the Garci Tapes affects gravely the sanctity of the
punishment.—While there can be no prior restraint on protected ballot. Public discussion on the sanctity of the ballot is
expression, such expression may be subject to subsequent indisputably a protected expression that cannot be subject to prior
punishment, either civilly or criminally. Thus, the publication of restraint. Public discussion on the credibility of the electoral
election surveys cannot be subject to prior restraint, but an process is one of the highest political expressions of any electorate,
aggrieved person can sue for redress of injury if the survey turns and thus deserves the utmost protection. If ever there is a hierarchy
out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised of protected expressions, political expression would occupy the
Penal Code punishing “shows which offend any race or religion” highest rank, and among different kinds of political expression, the
cannot be used to justify prior restraint on religious expression, this subject of fair and honest elections would be at the top. In any event,
provision can be invoked to justify subsequent punishment of the public discussion on all political issues should always remain
perpetrator of such offensive shows. Similarly, if the unprotected uninhibited, robust and wide open.
expression does not warrant prior restraint, the same expression Same; Same; Same; Same; Anti-Wiretapping Act (R.A. No.
may still be subject to subsequent punishment, civilly or criminally. 4200); The alleged violation of the Anti-Wiretapping Law is not in
Libel falls under this class of unprotected expression. However, if itself a ground to impose a prior restraint on the airing of the Garci
Tapes because the Constitution expressly prohibits the enactment of outright such prior restraint because such restraint is presumed
any law, and that includes anti-wiretapping laws, curtailing unconstitutional at inception; As an agency that allocates
freedom of expression.—The rule, which recognizes no frequencies or airwaves, the National Telecommunications
exception, is that there can be no content-based prior Commission (NTC) may regulate the bandwidth position,
restraint on protected expression. On this ground alone, the transmitter wattage, and location of radio and television stations,
NTC press release is unconstitutional. Of course, if the courts but not the content of the broadcasts.—The NTC has no power to
determine that the sub- impose content-based prior restraint on expression. The charter of
461 the NTC does not vest NTC with any content-based censorship
VOL. 545, FEBRUARY 15, 2008 461 power over radio and television stations. In the present case, the
Chavez vs. Gonzales airing of the Garci Tapes is a protected expression that can never
ject matter of a wiretapping, illegal or not, endangers the be subject to prior restraint. However, even assuming for the
security of the State, the public airing of the tape becomes 462
unprotected expression that may be subject to prior restraint. 462 SUPREME COURT REPORTS ANNOTATED
However, there is no claim here by respondents that the subject Chavez vs. Gonzales
matter of the Garci Tapes involves national security and publicly sake of argument that the airing of the Garci Tapes constitutes
airing the tapes would endanger the security of the State. The unprotected expression, only the courts have the power to
alleged violation of the AntiWiretapping Law is not in itself a adjudicate on the factual and legal issue of whether the airing of
ground to impose a prior restraint on the airing of the Garci Tapes the Garci Tapes presents a clear and present danger of bringing
because the Constitution expressly prohibits the enactment of any about a substantive evil that the State has a right and duty to
law, and that includes antiwiretapping laws, curtailing freedom of prevent, so as to justify the prior restraint. Any order imposing
expression. The only exceptions to this rule are the four recognized prior restraint on unprotected expression requires prior
categories of unprotected expression. However, the content of the adjudication by the courts on whether the prior restraint is
Garci Tapes does not fall under any of these categories of constitutional. This is a necessary consequence from the
unprotected expression. presumption of invalidity of any prior restraint on unprotected
Same; Same; Same; Same; Same; Right to Privacy; Right to expression. Unless ruled by the courts as a valid prior restraint,
Information; The airing of the Garci Tapes does not violate the right government agencies cannot implement outright such prior
to privacy because the content of the Garci Tapes is a matter of restraint because such restraint is presumed unconstitutional at
important public concern—the Constitution guarantees the people’s inception. As an agency that allocates frequencies or airwaves, the
right to information on matters of public concern.—The airing of the NTC may regulate the bandwidth position, transmitter wattage,
Garci Tapes does not violate the right to privacy because the and location of radio and television stations, but not the content of
content of the Garci Tapes is a matter of important public concern. the broadcasts. Such content-neutral prior restraint may make
The Constitution guarantees the people’s right to information on operating radio and television stations more costly. However, such
matters of public concern. The remedy of any person aggrieved by content-neutral restraint does not restrict the content of the
the public airing of the Garci Tapes is to file a complaint for broadcast.
violation of the AntiWiretapping Law after the commission of the
crime. Subsequent punishment, absent a lawful defense, is the AZCUNA,J., Separate Concurring Opinion:
remedy available in case of violation of the Anti-Wiretapping Law.
Same; Same; Same; Same; Administrative Law; National Freedom of Expression; Telecommunications
Telecommunications Commission; Unless ruled by the courts as a Industry; Chilling Effect Principle; The challenged National
valid prior restraint, government agencies cannot implement Telecommunications Commission (NTC) and Department of Justice
(DOJ) warnings violate Sec. 10, Art. XVI of the Constitution—the suspension. It is evident that the issuance does not prohibit the
regulatory warnings involved in this case work against a balanced airing of the Garci tapes or require that the broadcast stations
flow of information in our communication structures and do so obtain permission from the government or the NTC to air such
without respecting freedom of speech by casting a chilling effect on tapes.
the media.—I vote to GRANT the petition on the ground that the Same; Same; Same; Same; Still, without undertaking a
challenged NTC and DOJ warnings violate Sec. 10, Art. XVI of the demonstration how the Press Release actually restrained free
Constitution which states: Sec. 10. The State shall provide the expression, the majority surprisingly makes a leap of logic,
policy environment for the full development of Filipino capability concluding as it does that such an informal act as a press statement
and the emergency of communication structures suitable to the is covered by the prior restraint concept; Absent prior restraint, no
needs and aspirations of the nation and the balanced flow of presumption of invalidity can arise.—The Press Release does not fit
information into, out of, and across the country, in accordance with into any of the acts described above in the majority opinion. Neither
a policy that respects the freedom of speech and of the press. x x x can it be identified as an “official government restriction” as it
The regulatory warnings involved in this case work against a simply does not levy any actual restriction on the subjects of NTC
balanced flow of information in our communication structures and regulation. Still, without undertaking a demonstration how the
do so without respecting freedom of speech by casting a chilling Press Release actually restrained free expression, the majority
effect on the media. This is definitely not the policy environment surprisingly makes a leap of logic, concluding as it does that such
contemplated by the Constitution. an informal act as a press statement is covered by the prior
463 restraint concept. As with Justice Carpio, the majority does not
VOL. 545, FEBRUARY 15, 2008 463 precisely explain how the Press Release could constitute an actual
Chavez vs. Gonzales restraint, worded as it was with nary a notion of restriction and
given its lack “of an immediate and irreversible sanction.” Absent
TINGA,J., Separate Opinion (Dissenting and Concurring): prior restraint, no presumption of invalidity can arise.
464
Freedom of Expression; Freedom of the Press; Prior 464 SUPREME COURT REPORTS ANNOTATED
Restraint; Garci Tapes; The assailed act of the National Chavez vs. Gonzales
Telecommunications Commission (NTC), contained in what is after Same; Same; Same; Chilling Effect Principle; A government
all an unenforceable Press Release, hardly constitutes “an act that has a chilling effect on the exercise of free expression is an
immediate and irreversible sanction”—the issuance does not infringement within the constitutional purview; If it can be said that
prohibit the airing of the Garci tapes or require that the broadcast a threat of criminal or civil sanctions after publication chills speech,
station obtain permission from the government or the National prior restraint freezes it at least for the time.—A government act
Telecommunications Commission (NTC) to air such tapes.—Yet that has a chilling effect on the exercise of free expression is an
prior restraint “by contrast and by definition, has an immediate and infringement within the constitutional purview. As the liberal lion
irreversible sanction.” The assailed act of the NTC, contained in Justice William Brennan announced, in NAACP v. Button, 371 U.S.
what is after all an unenforceable Press Release, hardly constitutes 415 (1963), “the threat of restraint, as opposed to actual
“an immediate and irreversible sanction.” In fact, as earlier noted, restraint itself, may deter the exercise of the right to free
the Press Release does not say that it would immediately sanction expression almost as potently as the actual application of
a broadcast station which airs the Garci tapes. What it does say is sanctions.” Such threat of restraint is perhaps a more insidious, if
that only “if it has been subsequently established that the said not sophisticated, means for the State to trample on free speech.
tapes are false and/or fraudulent after a prosecution or appropriate Protected expression is chilled simply by speaking softly while
investigation” that the stations could be subjected to possible carrying a big stick. In distinguishing chilling effect from prior
restraint, Nebraska Press Association, citing Bickel, observed, “[i]f accepted in the United States. In fact, in Zieper v. Metzinger, the
it can be said that a threat of criminal or civil sanctions after U.S. District Court of New York found it relevant, in ruling against
publication ‘chills’ speech, prior restraint “freezes” it at least for the the petitioner, that Zieper “has stated affirmatively that his speech
time.” An act of government that chills expression is subject to was not chilled in any way.” “Where a party can show no change in
nullification or injunction from the courts, as it violates Section 3, his behavior, he has quite plainly shown no chilling of his First
Article III of the Constitution. “Because government retaliation Amendment right to free speech.”
tends to chill an individual’s exercise of his right to free expression, Same; Same; Same; Same; In the employment of the “chilling
public officials may not, as a general rule, respond to an individual’s effect mode of analysis,” disregarding the actual effects would mean
protected activity with conduct or speech even though that conduct dispensing with any evidentiary requirement for the constitutional
or speech would otherwise be a lawful exercise of public authority. claim, a doctrine which does not bode well for the Court’s future in
Same; Same; Same; Same; There appears to be no case in constitutional adjudication, and one I expect that will be
American jurisprudence where a First Amendment claim went significantly modified in due time.—The majority states that
forward in the absence of evidence that speech was actually “[t]here is enough evidence of chilling effect of the complained acts
chilled.—On the one hand, Justice Carpio does not bother to engage of record,” alluding to “the warnings given to media [which] came
in any “chilling effect” analysis. On the other hand, the majority from no less the NTC, a regulatory agency that can cancel the
does conclude that the acts of the NTC had a chilling effect. Was Certificate of Authority of the radio and broadcast media.” With due
there truly a chilling effect resulting from the Press Release of the respect, I submit that what the record establishes is merely the
NTC? While the act or issuance itself may evince the impression of presence of the cause for chilling (the Press Release), but not the
a chilling effect, there still must be factual evidence to support the actual chilling effect itself on the broadcast media. In that respect,
conclusion that a particular act of government actually engendered the Joint Statement of the NTC and the KBP executed just three
a chilling effect. There appears to be no case in American (3) days after the issuance of the Press Release, becomes material.
jurisprudence where a First Amendment claim went In the employment of the “chilling effect mode of analysis,”
forward in the absence of evidence that speech was actually disregarding the actual effects would mean dispensing with any
chilled. evidentiary requirement for the constitutional claim. That is a
465 doctrine which does not bode well for the Court’s future in
VOL. 545, FEBRUARY 15, 2008 465 constitutional adjudication, and one I expect that will be
Chavez vs. Gonzales significantly modified in due time.
Same; Same; Same; Same; It makes utter sense to impose even 466
a minimal evidentiary requirement before the Court can conclude 466 SUPREME COURT REPORTS ANNOTATED
that a particular government action has had a chilling effect on free Chavez vs. Gonzales
speech—without an evidentiary standard, judges will be forced to Same; Same; Same; Same; It is the unequivocal threats to
rely on intuition and even personal or political sentiments as the prosecute would-be-offenders, made no less by the head of the
basis for determining whether or not a chilling effect is present.—It principal law agency of the government charged with the
makes utter sense to impose even a minimal evidentiary administration of the criminal justice system, that constitute the
requirement before the Court can conclude that a particular violation of a fundamental freedom that in turn warrants this
government action has had a chilling effect on free speech. Without Court’s intervention.—The majority and concurring opinions hardly
an evidentiary standard, judges will be forced to rely on intuition offer any rebuke to the DOJ Secretary even as they vote to grant
and even personal or political sentiments as the basis for affirmative relief against his actions. This ensued, I suspect, due to
determining whether or not a chilling effect is present. That is a the undue focus placed on the arguments concerning the NTC, even
highly dangerous precedent, and one that clearly has not been though the petition itself was not so oriented. But for my part, it is
the unequivocal threats to prosecute would-be-offenders, made no points out that the DOJ Secretary has not actually “made any
less by the head of the principal law agency of the government issuance, order or instruction to the NBI to go after such media
charged with the administration of the criminal justice system, that organizations.” Yet the fact that the DOJ Secretary has yet to make
constitute the violation of a fundamental freedom that in turn operational his threats does not dissuade from the conclusion that
warrants this Court’s intervention. the threats alone already chilled the atmosphere of free speech or
Same; Same; Same; Same; Quite clearly, the Department of expression.
Justice (DOJ) Secretary did infringe on the right to free expression
by employing “the threat of restraint,” thus embodying “government VELASCO,JR.,J., Concurring and Dissenting Opinion:
retaliation [that] tends to chill an individual’s exercise of his right
to free expression.”—Was there an actual infringement of the right Freedom of Expression; Freedom of the Press; Prior
to free expression committed by the DOJ Secretary? If so, how was Restraint;Chilling Effect Principle; With the view I take of the
such accomplished? Quite clearly, the DOJ Secretary did infringe situation, the very fact that the Kapisanan ng mga Brodcasters sa
on the right to free expression by employing “the threat of Pilipinas (KBP) agreed to come up with the joint press statement
restraint,” thus embodying “government retaliation [that] tends to that “NTC did not issue any [Memorandum Circular] or order
chill an individual’s exercise of his right to free expression.” The constituting a restraint of press freedom or censorship” tends to
DOJ Secretary plainly and directly threatened anyone in possession prove, rather than disprove, the threatening and chilling tone of its
of the Garcitapes, or anyone who aired or disseminated the same, June 11, 2005 press release.—The facts on record are sufficient to
with the extreme sanction of criminal prosecution and possible support a conclusion that the press release issued by NTC—with all
imprisonment. He reiterated the threats as he directed the NBI to the unmistakable threat embodied in it of a possible cancellation of
investigate the airing of the tapes. He even extended the warning licenses and/or the filing of criminal cases against erring media
of sanction to the Executive Press Secretary. These threats were owners and practitioners—constitutes a clear instance of prior
evidently designed to stop the airing or dissemination of restraint. Not lost on this writer is the fact that five (5) days after
the Garci tapes—a protected expression which cannot be enjoined it made the press release in question, NTC proceeded to issue
by executive fiat. jointly with the Kapisanan ng mga Broadcasters sa Pilipinas (KBP)
Same; Same; Same; Same; The fact that the Department of another press release to clarify that the earlier one issued was not
Justice (DOJ) Secretary has yet to make operational his threats does intended to limit or restrain press freedom. With the view I take of
not dissuade from the conclusion that the threats alone already the situation, the very fact that the KBP agreed to come up with the
chilled the atmosphere of free speech or expression.—Tasked with joint press statement that “NTC did not issue any [Memorandum
undertaking the defense of the DOJ Secretary, the OSG offered not Circular] or order constituting a restraint of press freedom or
even a ghost of a contest as soon as the bell for the first round rang. censorship” tends to prove, rather than disprove, the threatening
In abject surrender, it squeezed in just one paragraph in its 27-page and chilling tone of its June 11, 2005 press release. If there was no
467 prior restraint from the point of view of media, why was there a
VOL. 545, FEBRUARY 15, 2008 467 need to hold a dialogue with KBP and then issue a clarifying joint
Chavez vs. Gonzales statement? Moreover, the fact that media owners, operators, and
Comment for that purpose. The arguments offered in that practitioners appeared to have been frozen into inaction, not
solitary paragraph are meager. It avers that the media reports are making any visible effort to challenge the validity of the NTC press
without probative value or, at best, inconclusive as the declarations statement, or at least join the petitioner in his battle for press
468
therein may have been quoted inaccurately or out of context. Yet
the OSG does not deny that the statements were made, failing even 468 SUPREME COURT REPORTS ANNOTATED
to offer what may have been the “accurate context.” The OSG also Chavez vs. Gonzales
freedom, can only lead to the conclusion that the chilling effect Freedom of Expression; Freedom of the Press; Prior
of the statement left them threatened. Restraint;Chilling Effect Principle; Administrative Law; The reason
Same; Same; Same; Same; There was no proof at all of the escapes me
possible chilling effect that the alleged statements of Department of 469
Justice (DOJ) Secretary Gonzales had on the reporters and media VOL. 545, FEBRUARY 15, 2008 469
practitioners—the DOJ Secretary, as head of the prosecution arm of Chavez vs. Gonzales
the government and lead administrator of the criminal justice as to why a prohibition, when it was stated in the National
system under the Administrative Code is, to be sure, impliedly Telecommunications Commission (NTC) Memorandum Circulars
empowered to issue reminders and warnings against violations of and in the authorizations and permits, was valid and acceptable,
penal statutes; For the reason that it is unclear as to whether the but when it was reiterated in a mere press statement released by the
Department of Justice (DOJ) Secretary exceeded his mandate under National Telecommunications Commission (NTC), had become a
the premises, the prior-restraint issue in the DOJ aspect of the case violation of the Constitution as a prior restraint on free speech.—A
is not yet ripe for adjudication.—While the Court has several pieces scrutiny of the “fair warning” issued by the NTC on 11 June 2005
of evidence to fall back on and judiciously resolve the NTC press reveals that it is nothing more than that, a fair warning, calling for
release issue, the situation is different with respect to the sobriety, care, and circumspection in the news reporting and
Department of Justice (DOJ) warning issue. What is at hand are current affairs coverage by radio and television stations. It
mere allegations in the petition that, on June 8, 2005, respondent reminded the owners and operators of the radio stations and
DOJ Secretary Raul Gonzales warned reporters in possession of television networks of the provisions in NTC Memorandum
copies of the compact disc containing the alleged “Garci” wiretapped Circulars No. 11-12-85 and 22-89, which are also stated in the
conversation and those broadcasting or publishing its contents that authorizations and permits granted to them by the government,
they could be held liable under the Anti-Wiretapping Act, adding that they shall not use their stations for the broadcasting or
that persons possessing or airing said tapes were committing a telecasting of false information or willful misrepresentation. It
continuing offense, subject to arrest by anybody who had personal must be emphasized that the NTC is merely reiterating the very
knowledge of the crime committed or in whose presence the crime same prohibition already contained in its previous circulars, and
was being committed. There was no proof at all of the possible even in the authorizations and permits of radio and television
chilling effect that the alleged statements of DOJ Secretary stations. The reason thus escapes me as to why said prohibition,
Gonzales had on the reporters and media practitioners. The DOJ when it was stated in the NTC Memorandum Circulars and in the
Secretary, as head of the prosecution arm of the government and authorizations and permits, was valid and acceptable, but when it
lead administrator of the criminal justice system under the was reiterated in a mere press statement released by the NTC,
Administrative Code is, to be sure, impliedly empowered to issue had become a violation of the Constitution as a prior restraint on
reminders and warnings against violations of penal statutes. And free speech.
it is a known fact that Secretary Gonzales had issued, and still Same; Same; Same; Same; We should be judicious in giving too
issues, such kind of warnings. Whether or not he exceeded his much weight and credence to press statements—it would be a
mandate under premises is unclear. It is for this main reason that dangerous precedent to rule that press statements should be deemed
I found the prior-restraint issue in the DOJ aspect of the case not an official act of the administrative agency or public official
yet ripe for adjudication. concerned.—We should be judicious in giving too much weight and
credence to press statements. I believe that it would be a dangerous
CHICO-NAZARIO,J., Separate Opinion: precedent to rule that press statements should be deemed an official
act of the administrative agency or public official concerned. Press
statements, in general, can be easily manufactured, prone to
alteration or misinterpretation as they are being reported by the indulge in academic discussion of a case presenting a moot question
media, and may, during some instances, have to be made on the as a judgment thereon cannot have any practical legal effect or, in
spot without giving the source much time to discern the the nature of things, cannot be enforced.
ramifications of his statements. Hence, they cannot be given the Same; Same; Capable of Repetition Yet Evading Review
same weight and binding effect of official acts in the form of, say, Rule; Courts shall decide a question otherwise moot and academic
memorandum orders or circulars. if it is capable of repetition yet evasive of review.—In the instant
470 case, it is readily observable that the subsequent joint statement of
470 SUPREME COURT REPORTS ANNOTATED the respondent NTC and the Officers and Board of Directors of the
Chavez vs. Gonzales KBP after their June 14, 2005 dialogue not only substantially
diminished
471
NACHURA, J., Dissenting Opinion:
VOL. 545, FEBRUARY 15, 2008 471
Judicial Review; Locus Standi; When the issue concerns a Chavez vs. Gonzales
public right, it is sufficient that the petitioner is a citizen and has an but, in fact, obliterated the effects of the earlier press
interest in the execution of the laws.—Petitioner has standing to file warnings, thus rendering the case moot and academic. Notably, the
the instant petition. The test is whether the party has alleged such joint press statement acknowledged that “NTC did not issue any
a personal stake in the outcome of the controversy as to assure that memorandum circular or order constituting a restraint of press
concrete adverseness which sharpens the presentation of issues freedom or censorship.” A case becomes moot when its purpose has
upon which the court so largely depends for illumination of difficult become stale. Be that as it may, the Court should discuss and
constitutional questions. When suing as a citizen, the person resolve the fundamental issues raised herein, in observance of the
complaining must allege that he has been or is about to be denied rule that courts shall decide a question otherwise moot and
some right or privilege to which he is lawfully entitled or that he is academic if it is capable of repetition yet evasive of review.
about to be subjected to some burdens or penalties by reason of the Freedom of Expression; Prior Restraint; As an aspect of
statute or act complained of. When the issue concerns a public right, freedom of expression, prior restraint should not be confused with
it is sufficient that the petitioner is a citizen and has an interest in subsequent punishment; The doctrine of prior restraint originated
the execution of the laws. in the common law of England where prior restraints of the press
Same; Moot and Academic Issues; It is unnecessary to indulge were not permitted, but punishment after publication was.—As an
in academic discussion of a case presenting a moot question as a aspect of freedom of expression, prior restraint should not be
judgment thereon cannot have any practical legal effect or, in the confused with subsequent punishment. In Alexander v. U.S.,
nature of things, cannot be enforced.—The exercise by this Court of petitioner’s complaint was that the RICO forfeiture provisions on
the power of judicial inquiry is limited to the determination of businesses dealing in expressive materials constituted “prior
actual cases and controversies. An actual case or controversy means restraint” because they may have an improper “chilling” effect on
an existing conflict that is appropriate or ripe for judicial free expression by deterring others from engaging in protected
determination, one that is not conjectural or anticipatory, otherwise speech. In rejecting the petitioner’s contention and ruling that the
the decision of the court will amount to an advisory opinion. The forfeiture is a permissible criminal punishment and not a prior
power does not extend to hypothetical questions since any attempt restraint on speech, the U.S. Supreme Court said: The term prior
at abstraction could only lead to dialectics and barren legal restraint is used “to describe administrative and judicial orders
questions and to sterile conclusions unrelated to actualities. forbidding certain communications when issued in advance of the
Neither will the Court determine a moot question in a case in which time that such communications are to occur.” Temporary
no practical relief can be granted. Indeed, it is unnecessary to restraining orders and permanent injunctions—i.e., court orders
that actually forbid speech activities—are classic examples of prior revocation and criminal prosecution are simply what they are, mere
restraints. x x x x Finally, petitioner’s proposed definition of the warnings. They have no compulsive effect, as they do not impose a
term “prior restraint” would undermine the time-honored limit on speech or other forms of expression nor do they prevent the
distinction between barring speech in the future and penalizing expression of a message.
past speech. The doctrine of prior restraint originated in the Same; Same; Same; Same; Anti-Wiretapping Law (R.A. No.
common law of England where prior restraints of the press were not 4200); Conviction under the law should fittingly be a just cause for
permitted, but punishment after publication was. This very limited the revocation of the license of the erring radio or television
application of the principle of freedom of speech was held station.—The Anti-Wiretapping Law (Republic Act 4200) is a penal
inconsistent with our First Amendment as long ago as Grosjean v. statute. Over the years, no successful challenge to its validity has
American Press Co. While we may have given a broader definition been sustained. Conviction under the law should fittingly be a just
to the term “prior restraint” than was given to it in English common cause for the revocation of the license of the erring radio or
law, our decisions have steadfastly preserved the distinction television station.
between prior restraints and subsequent punishments. Though
petitioner tries to dismiss this distinction as “neither meaningful SPECIAL CIVIL ACTION in the Supreme Court. Certiorari
nor useful,” we think it is critical and Prohibition.
472
472 SUPREME COURT REPORTS ANNOTATED The facts are stated in the opinion of the Court.
Chavez vs. Gonzales 473
to our First Amendment jurisprudence. Because we have VOL. 545, FEBRUARY 15, 2008 473
interpreted the First Amendment as providing greater protection Chavez vs. Gonzales
from prior restraints than from subsequent punishments, it is
important for us to delineate with some precision the defining PUNO, C.J.:
characteristics of a prior restraint. To hold that the forfeiture order
in this case constituted a prior restraint would have the exact A. Precis
opposite effect. It would blur the line separating prior restraints In this jurisdiction, it is established that freedom of the press
from subsequent punishments to such a degree that it would be is crucial and so inextricably woven into the right to free
impossible to determine with any certainty whether a particular speech and free expression, that any attempt to restrict it
measure is a prior restraint or not.
must be met with an examination so critical that only a
Same; Same; Freedom of the Press; Chilling Effect; Warnings
on possible license revocation and criminal prosecution are simply
danger that is clear and present would be allowed to curtail
what they are, mere warnings—they have no compulsive effect, as it. Indeed, we have not wavered in the duty to uphold this
they do not impose a limit on speech or other forms of expression nor cherished freedom. We have struck down laws and issuances
do they prevent the expression of a message.—There is no parity meant to curtail this right, as in Adiong v.
between these cases and the case at bench. Unlike the government COMELEC, Burgos v. Chief of Staff, Social Weather Stations
1 2

acts in the above-cited cases, what we have before us now is merely v. COMELEC, and Bayan
3 v. Executive Secretary
a press release—not an order or a circular—warning broadcast Ermita. When on its face, it is clear that a governmental act
4

media on the airing of an alleged taped conversation, with is nothing more than a naked means to prevent the free
the caveat that should its falsity be subsequently established, the exercise of speech, it must be nullified.
act could lead to the revocation or cancellation of their licenses,
after appropriate investigation. The warnings on possible license
B. The Facts under the Anti-Wiretapping Act. These persons included
1. The case originates from events that occurred a year after Secretary Bunye and Atty. Paguia. He also stated that
the 2004 national and local elections. On June 5, 2005, Press persons possessing or airing said tapes were committing a
Secretary Ignacio Bunye told reporters that the opposition continuing offense, subject to arrest by anybody who had
was planning to destabilize the administration by releasing personal knowledge if the crime was committed or was being
an audiotape of a mobile phone conversation allegedly committed in their presence. 9

between the President of the Philippines, Gloria Macapagal 4. On June 9, 2005, in another press briefing, Secretary
Arroyo, and a high-ranking official of the Commission on Gonzales ordered the National Bureau of Investigation (NBI)
Elections (COMELEC). The conversation was audiotaped to go after media organizations “found to have caused the
allegedly through wire-tapping. Later, in a Malacañangpress
5 spread, the playing and the printing of the contents of a tape”
briefing, Secretary Bunye produced two versions of the tape, of an alleged wiretapped conversation involving the President
one supposedly the complete version, and the other, a about fixing votes in the 2004 national elections. Gonzales
said that he was going to start with Inq7.net, a joint venture
_______________
between the Philippine Daily Inquirer and
1 G.R. No. 103956, March 31, 1992, 207 SCRA 712. GMA7 television network, because by the very nature of the
2 218 Phil. 754; 133 SCRA 800 (1984). Internet me-
3 G.R. No. 147571, May 5, 2001, 357 SCRA 496.

4 G.R. No. 169838, April 25, 2006, 488 SCRA 226. _______________
5 Rollo, pp. 6-7 (citing the Philippine Daily Inquirer (PDI), June 7, 2005,

pp. A1, A18; PDI, June 14, 2005, p. A1); and p. 58. 6 Id., at pp. 7-8 (citing the Manila Standard, June 10, 2005, p. A2); and 58.
474 7 Id., at pp. 7-8 and 59.
8 Id.
474 SUPREME COURT REPORTS ANNOTATED
9 Id., at pp. 8-9 and 59.
Chavez vs. Gonzales 475
spliced, “doctored” or altered version, which would suggest VOL. 545, FEBRUARY 15, 2008 475
that the President had instructed the COMELEC official to Chavez vs. Gonzales
manipulate the election results in the President’s favor. It
dium, it was able to disseminate the contents of the tape more
6

seems that Secretary Bunye admitted that the voice was that
widely. He then expressed his intention of inviting the editors
of President Arroyo, but subsequently made a retraction. and managers of Inq7.net and GMA7 to a probe, and
7

2. On June 7, 2005, former counsel of deposed President supposedly declared, “I [have] asked the NBI to conduct a
Joseph Estrada, Atty. Alan Paguia, subsequently released an tactical interrogation of all concerned.” 10

alleged authentic tape recording of the wiretap. Included in


5. On June 11, 2005, the NTC issued this press release: 11

the tapes were purported conversations of the President, the NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
First Gentleman Jose Miguel Arroyo, COMELEC OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING
Commissioner Garcillano, and the late Senator Barbers. 8
LAW AND PERTINENT CIRCULARS ON PROGRAM
3. On June 8, 2005, respondent Department of Justice STANDARDS
(DOJ) Secretary Raul Gonzales warned reporters that those xxx xxx xxx
who had copies of the compact disc (CD) and those Taking into consideration the country’s unusual situation, and
broadcasting or publishing its contents could be held liable in order not to unnecessarily aggravate the same, the
NTC warns all radio stations and television network television stations shall, during any broadcast or telecast, cut off
owners/operators that the conditions of the authorization and from the air the speech, play, act or scene or other matters being
permits issued to them by Government like the Provisional broadcast or telecast the tendency thereof is to disseminate false
Authority and/or Certificate of Authority explicitly provides that information or such other willful misrepresentation, or to propose
said companies shall not use [their] stations for the broadcasting or and/or incite treason, rebellion or sedition.” The foregoing directive
telecasting of false information or willful misrepresentation. had been reiterated by NTC Memorandum Circular No. 22-89,
Relative thereto, it has come to the attention of the [NTC] that which, in addition thereto, prohibited radio, broadcasting and
certain personalities are in possession of alleged taped television stations from using their stations to broadcast or telecast
conversations which they claim involve the President of the any speech, language or scene disseminating false information or
Philippines and a Commissioner of the COMELEC regarding willful misrepresentation, or inciting, encouraging or assisting in
supposed violation of election laws. subversive or treasonable acts.
These personalities have admitted that the taped conversations The [NTC] will not hesitate, after observing the
are products of illegal wiretapping operations. requirements of due process, to apply with full force the
Considering that these taped conversations have not been duly provisions of said Circulars and their accompanying
authenticated nor could it be said at this time that the tapes contain sanctions on erring radio and television stations and their
an accurate or truthful representation of what was recorded owners/operators.
therein, it is the position of the [NTC] that the continuous airing or 6. On June 14, 2005, NTC held a dialogue with the Board of
broadcast of the said taped conversations by radio and television Directors of the Kapisanan ng mga Brodkaster sa Pilipinas
stations is a continuing violation of the Anti-Wiretapping Law and (KBP). NTC allegedly assured the KBP that the press release
the conditions of the Provisional Authority and/or Certificate of did not violate the constitutional freedom of speech, of
Authority issued to these radio and television stations. It has been
expression, and of the press, and the right to information.
subsequently established that the said tapes are false and/or
Accordingly, NTC and KBP issued a Joint Press
fraudulent after a prosecution or appropriate investigation, the
concerned radio and television Statement which states, among others, that: 12

_______________  • NTC respects and will not hinder freedom of the press and
the right to information on matters of public concern. KBP
Id., at p. 9.
& its members have always been committed to the exercise
10

Id., at pp. 10-12, 43-44, 60-62.


11

476
_______________
476 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales Id., at pp. 62-63, 86-87.
12

companies are hereby warned that their broadcast/airing of 477


such false information and/or willful misrepresentation VOL. 545, FEBRUARY 15, 2008 477
shall be just cause for the suspension, revocation and/or Chavez vs. Gonzales
cancellation of the licenses or authorizations issued to the
said companies.  of press freedom with high sense of responsibility and
In addition to the above, the [NTC] reiterates the pertinent NTC
discerning judgment of fairness and honesty.
circulars on program standards to be observed by radio and
television stations. NTC Memorandum Circular 111-12-85
 • NTC did not issue any MC [Memorandum Circular] or
explicitly states, among others, that “all radio broadcasting and Order constituting a restraint of press freedom or
censorship. The NTC further denies and does not intend to present that curtail the public’s rights to freedom of expression and
limit or restrict the interview of members of the opposition of the press, and to information on matters of public concern
or free expression of views. specifically in relation to information regarding the controversial
 • What is being asked by NTC is that the exercise of press taped conversion of President Arroyo and for prohibition of the
further commission of such acts, and making of such issuances, and
freedom [be] done responsibly.
orders by respondents.” 15

 • KBP has program standards that KBP members will


Respondents denied that the acts transgress the
16

observe in the treatment of news and public affairs


Constitution, and questioned petitioner’s legal standing to file
programs. These include verification of sources, non-airing
the petition. Among the arguments they raised as to the
of materials that would constitute inciting to sedition
validity of the “fair warning” issued by respondent NTC, is
and/or rebellion.
that broadcast media enjoy lesser constitutional guarantees
 • The KBP Codes also require that no false statement or
compared to print media, and the warning was issued
willful misrepresentation is made in the treatment of news
pursuant to the NTC’s mandate to regulate the
or commentaries.
telecommunications industry. It was also stressed that “most
17

 • The supposed wiretapped tapes should be treated with


of the [television] and radio stations continue, even to this
sensitivity and handled responsibly giving due
date, to air the tapes, but of late within the parameters agreed
consideration to the process being undertaken to verify and
upon between the NTC and KBP.” 18

validate the authenticity and actual content of the same.”


D. The Procedural Threshold: Legal Standing
To be sure, the circumstances of this case make the
C. The Petition
constitutional challenge peculiar. Petitioner, who is not a
Petitioner Chavez filed a petition under Rule 65 of the Rules
member
of Court against respondents Secretary Gonzales and the
NTC, “praying for the issuance of the writs of certiorari and _______________
prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional 14 Respondents have “committed blatant violations of the freedom of
expression and of the press and the right of the people to information on
and oppressive exercise of authority by the respondents.”13
matters of public concern enshrined in Article III, Sections 4 and 7 of the 1987
Alleging that the acts of respondents are violations of the Constitution. Id., at p. 18. Petitioner also argued that respondent NTC acted
freedom on expression and of the press, and the right of the beyond its powers when it issued the press release of June 11, 2005. Id.
15 Id., at p. 6.

16 Through the Comment filed by the Solicitor-General. Id., at pp. 56-83.


_______________
17 Id., at pp. 71-73.

18 Id., at pp. 74-75.


Id., at p. 6.
13

478 479
478 SUPREME COURT REPORTS ANNOTATED VOL. 545, FEBRUARY 15, 2008 479
Chavez vs. Gonzales Chavez vs. Gonzales
people to information on matters of public concern, petitioner
14 of the broadcast media, prays that we strike down the acts
specifically asked this Court: and statements made by respondents as violations of the right
“[F]or [the] nullification of acts, issuances, and orders of to free speech, free expression and a free press. For another,
respondents committed or made since June 6, 2005 until the the recipients of the press statements have not come
forward—neither intervening nor joining petitioner in this Constitution to determine whether or not other branches of
action. Indeed, as a group, they issued a joint statement with government have kept themselves within the limits of the
respondent NTC that does not complain about restraints on Constitution and the laws and that they have not abused the
freedom of the press. discretion given to them.
It would seem, then, that petitioner has not met the Thus, in line with the liberal policy of this Court on locus
requisite legal standing, having failed to allege “such a standiwhen a case involves an issue of overarching
personal stake in the outcome of the controversy as to assure significance to our society, we therefore brush aside
22

that concrete adverseness which sharpens the presentation of technicalities of procedure and take cognizance of this
issues upon which the Court so largely depends for petition, seeing as it involves a challenge to the most exalted
23

illumination of difficult constitutional questions.” 19 of all the civil rights, the freedom of expression.The petition
But as early as half a century ago, we have already held raises other issues like the extent of the right to
that where serious constitutional questions are involved, “the information of the public. It is fundamental, however,
transcendental importance to the public of these cases that we need not address all issues but only the most
demands that they be settled promptly and definitely, decisive one which in the case at bar is whether the
brushing aside if we must, technicalities of acts of the respondents abridge freedom of speech and
procedure.” Subsequently, this Court has repeatedly and
20 of the press.
consistently refused to wield procedural barriers as But aside from the primordial issue of determining
impediments to its addressing and whether free speech and freedom of the press have
been infringed, the case at bar also gives this Court the
_______________
opportunity: (1) to distill the essence of freedom of
19 The Court will exercise its power of judicial review only if the case is
_______________
brought before it by a party who has the legal standing to raise the
constitutional or legal question. “Legal standing” means a personal and 21 See Agan v. PIATCO (Decision), 450 Phil. 744; 402 SCRA 612 (2003).
substantial interest in the case such that the party has sustained or will 22 Philconsa v. Gimenez, 122 Phil. 894; 15 SCRA 479 (1965); Civil Liberties
sustain direct injury as a result of the government act that is being challenged.
Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA
The term “interest” is material interest, an interest in issue and to be affected
317; Guingona v. Carague, G.R. No. 94571, April 22, 1991, 196 SCRA
by the decree, as distinguished from mere interest in the question involved, or
221; Osmeña v. COMELEC, G.R. No. 100318, July 30, 1991, 199 SCRA
a mere incidental interest. Pimentel v. Executive Secretary, G.R. No.
750; Basco v. Philippine Amusement and Gaming Corporation, 274 Phil. 323;
158088, July 6, 2005, 462 SCRA 622, citing Joya vs. Presidential Commission
(1991); Carpio v. Executive Secretary, G.R. No. 96409, February 14, 1992, 206
on Good Government, G.R. No. 96541, August 24, 1993, 225 SCRA 568.
SCRA 290; Del Mar v. Philippine Amusement and Gaming Corporation, 400
See Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540,
Phil. 307; 346 SCRA 485 (2000).
562–563; and Agan v. PIATCO (Decision), 450 Phil. 744; 402 SCRA 23 Basco v. Philippine Amusement and Gaming Corporation, 274 Phil.
612 (2003).
20 Araneta v. Dinglasan, 84 Phil. 368, 373 (1949), cited in Osmeña v.
323; 197 SCRA 52 (1991), citing Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas Inc. v. Tan, G.R. No. L-81311, June 30, 1988, 163
COMELEC, G.R. No. 100318, July 30, 1991, 199 SCRA 750.
SCRA 371.
480
481
480 SUPREME COURT REPORTS ANNOTATED VOL. 545, FEBRUARY 15, 2008 481
Chavez vs. Gonzales Chavez vs. Gonzales
resolving serious legal questions that greatly impact on public
interest, in keeping with the Court’s duty under the 1987
21
speech and of the press now beclouded by the vagaries preferred status of free speech has also been codified at the
of motherhood statements; (2) to clarify the types of international level, its recognition now enshrined in
speeches and their differing restraints allowed by law; international law as a customary norm that binds all nations. 27

(3) to discuss the core concepts of prior restraint, In the Philippines, the primacy and high esteem accorded
content-neutral and content-based regulations and freedom of expression is a fundamental postulate of our
their constitutional standard of review; (4) to examine constitutional system. This right was elevated to
28

the historical difference in the treatment of restraints constitutional status in the 1935, the 1973 and the 1987
between print and broadcast media and stress the Constitutions, reflecting our own lesson of history, both
standard of review governing both; and (5) to call political and legal, that freedom of speech is an indispensable
attention to the ongoing blurring of the lines of condition for nearly every other form of freedom. Moreover, 29

distinction between print and broadcast media. our history shows that the struggle to protect the freedom of
E. Re-examining The law on freedom of speech, of expression speech,
and of the press
_______________
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to essential to a free government. See LARRY KRAMER,THE PEOPLE
assemble and petition the government for redress of grievances. 24
THEMSELVES:POPULARCONSTITUTION AND JUDICIAL REVIEW
Freedom of expression has gained recognition as a (2004).
27 Article 19 of the 1948 Universal Declaration on Human Rights (UDHR)
fundamental principle of every democratic government, and
states: “Everyone has the right to freedom of opinion and expression; this right
given a preferred right that stands on a higher level than includes the right to hold opinions without interference and to seek, receive
substantive economic freedom or other liberties. The cognate and impart information and ideas through any media and regardless of
rights codified by Article III, Section 4 of the Constitution, frontiers.” Although the UDHR is not binding as a treaty, many of its
provisions have acquired binding status on States and are now part of
copied almost verbatim from the First Amendment of the U.S. customary international law. Article 19 forms part of the UDHR principles
Bill of Rights, were considered the necessary consequence of
25
that have been transformed into binding norms. Moreover, many of the rights
republican institutions and the complement of free in the UDHR were included in and elaborated on in the International
speech. This
26 Covenant on Civil and Political Rights (ICCPR), a treaty ratified by over 150
States, including the Philippines. The recognition of freedom of expression is
_______________ also found in regional human rights instruments, namely, the European
Convention on Human Rights (Article 10), the American Convention on
24 1987 PHIL.CONST. Art. III, §4. Human Rights (Article 10), and the African Charter on Human and Peoples’
25 U.S. Bill of Rights, First Amendment. (“Congress shall make no Rights (Article 9).
28 Gonzales v. COMELEC, 137 Phil. 471, 492; 27 SCRA 835, 856 (1969).
law…abridging the freedom of speech, or of the press, or the right of the people
29 Salonga v. Cruz-Pano, G.R. 59524, February 18, 1985, 134 SCRA 458-
peaceably to assemble, and to petition the Government for a redress of
459; Gonzales v. COMELEC, 137 Phil. 489, 492-493; 27 SCRA 835, 856
grievances.”)
26 The First Amendment was so crafted because the founders of the
(1969); Philippine Blooming Mills Employees Organization v. Philippine
American government believed—as a matter of history and experience—that Blooming Mills Co., 151-A Phil. 676-677; 51 SCRA 189 (1973); National Press
the freedom to express personal opinions was Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 9; Adiong
v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715.
482
483
482 SUPREME COURT REPORTS ANNOTATED
VOL. 545, FEBRUARY 15, 2008 483
Chavez vs. Gonzales
Chavez vs. Gonzales
expression and the press was, at bottom, the struggle for the Gonzales further explained that the vital need of a
indispensable preconditions for the exercise of other constitutional democracy for freedom of expression is
freedoms. For it is only when the people have unbridled
30 undeniable, whether as a means of assuring individual self-
access to information and the press that they will be capable fulfillment; of attaining the truth; of assuring participation by
of rendering enlightened judgments. In the oft-quoted words the people in social, including political, decision-making; and
of Thomas Jefferson, we cannot both be free and ignorant. of maintaining the balance between stability and change. As 34

E.1. Abstraction of Free Speech early as the 1920s, the trend as reflected in Philippine and
Surrounding the freedom of speech clause are various American decisions was to recognize the broadest scope and
concepts that we have adopted as part and parcel of our own assure the widest latitude for this constitutional guarantee.
Bill of Rights provision on this basic freedom. What is 31 The trend represents a profound commitment to the principle
embraced under this provision was discussed exhaustively by that debate on public issue should be uninhibited, robust, and
the Court in Gonzales v. Commission on Elections, in which 32 wideopen. 35

it was held: Freedom of speech and of the press means something more
“…At the very least, free speech and free press may be identified than the right to approve existing political beliefs or economic
with the liberty to discuss publicly and truthfully any matter of arrangements, to lend support to official measures, and to
public interest without censorship and punishment. There is to be take refuge in the existing climate of opinion on any matter of
no previous restraint on the communication of views or subsequent public consequence. When atrophied, the right becomes
36

liability whether in libel suits, prosecution for sedition, or action for


meaningless. The right belongs as well—if not more—to those
37

damages, or contempt proceedings unless there be a clear and


who question, who do not conform, who differ. The ideas that
38
present danger of substantive evil that Congress has a right to
prevent.” 33
may be expressed under this freedom are confined not only to
those that are conventional or acceptable to the majority. To
_______________ be truly meaningful, freedom of speech and of the press should
allow and even encourage the articulation of the unorthodox
30 Indeed, the struggle that attended the recognition of the value of free
view, though it be hostile to or derided by others; or though
expression was discussed by Justice Malcolm in the early case United States
v. Bustos, 37 Phil. 731, 739 (1918). Justice Malcolm generalized that the such view “induces a condition of unrest, creates
freedom of speech as cherished in democratic countries was unknown in the dissatisfaction with conditions as they are, or even stirs
Philippine Islands before 1900. Despite the presence of pamphlets and books people to anger.” To paraphrase Justice Holmes, it is freedom
39

early in the history of the Philippine Islands, the freedom of speech was alien
to those who were used to obeying the words of barangay lords and, _______________
ultimately, the colonial monarchy. But ours was a history of struggle for that
specific right: to be able to express ourselves especially in the governance of 34 Id., at p. 493; p. 857, citing Thomas I. Emerson, Toward a General Theory

this country. Id.


of the First Amendment, 72 Yale Law Journal 877 (1963).
31 Id.
35 Id. citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964).
32 137 Phil. 471, 492; 27 SCRA 835, 856-857 (1969).
36 Id.
33 Id.
37 Id.

484 38 Id.

484 SUPREME COURT REPORTS ANNOTATED 39 Id. citing Terminiello v. City of Chicago, 337 US 1, 4 (1949).

Chavez vs. Gonzales 485


VOL. 545, FEBRUARY 15, 2008 485
Chavez vs. Gonzales Chavez vs. Gonzales
for the thought that we hate, no less than for the thought that E.2. Differentiation: The Limits & Restraints of Free Speech
agrees with us. 40 From the language of the specific constitutional provision, it
The scope of freedom of expression is so broad that it would appear that the right to free speech and a free press is
extends protection to nearly all forms of communication. It not susceptible of any limitation. But the realities of life in a
protects speech, print and assembly regarding secular as well complex society preclude a literal interpretation of the
as political causes, and is not confined to any particular field provision prohibiting the passage of a law that would abridge
of human interest. The protection covers myriad matters of such freedom. For freedom of expression is not an
public interest or concern embracing all issues, about which absolute, nor is it an “unbridled license that gives immunity
42

information is needed or appropriate, so as to enable members for every possible use of language and prevents the
of society to cope with the exigencies of their period. The punishment of those who abuse this freedom.”
constitutional protection assures the broadest possible Thus, all speech are not treated the same. Some types
exercise of free speech and free press for religious, political, of speech may be subjected to some regulation by the State
economic, scientific, news, or informational ends, inasmuch as under its pervasive police power, in order that it may not be
the Constitution’s basic guarantee of freedom to advocate injurious to the equal right of others or those of the
ideas is not confined to the expression of ideas that are community or society. The difference in treatment is
43

conventional or shared by a majority. expected because the relevant interests of one type of
The constitutional protection is not limited to the speech, e.g., political speech, may vary from those of
exposition of ideas. The protection afforded free speech another, e.g., obscene speech. Distinctions have therefore
extends to speech or publications that are entertaining as well been made in the treatment, analysis, and evaluation of the
as instructive or informative. Specifically, in Eastern permissible scope of restrictions on various categories of
Broadcasting Corporation (DYRE) v. Dans, this Court stated
41 speech. We have ruled, for example, that in our jurisdiction
44

that all forms of media, whether print or broadcast, are slander or libel, lewd and obscene speech, as well as “fighting
entitled to the broad protection of the clause on freedom of words” are not entitled to constitutional protection and may
speech and of expression. be penalized. 45

While all forms of communication are entitled to the broad


_______________
protection of freedom of expression clause, the freedom of
film, television and radio broadcasting is somewhat 42 Gonzales v. COMELEC, 137 Phil. 471, 494; 27 SCRA 835, 858 (1969).
lesser in scope than the freedom accorded to 43 HECTORS.DELEON,IPHILIPPINECONSTITUTIONAL
newspapers and other print media, as will be LAW:PRINCIPLES AND CASES 485 (2003) [Hereinafter
DELEON,CONSTITUTIONAL LAW].
subsequently discussed. 44 See JOHN E. NOWAK &RONALD D. ROTUNDA, CONSTITUTIONAL

LAW§16.1, 1131 (7th ed. 2000 [Hereinafter NOWAK


_______________
&ROTUNDA, CONSTITUTIONAL LAW].
45 DELEON,CONSTITUTIONAL LAW at p. 485. Laws have also limited

Id. citing U.S. v. Schwimmer, 279 US 644, 655 (1929).


40
the freedom of speech and of the press, or otherwise affected the media and
G.R. No. L-59329, July 19, 1985, 137 SCRA 628.
41
freedom of expression. The Constitution itself imposes certain limits (such as
486 Article IX on the Commission on Elections, and Article XVI prohibiting foreign
486 SUPREME COURT REPORTS ANNOTATED media ownership); as do the
487 Cabansag
48 v. Fernandez, 102 Phil. 151 (1957); Gonzales v.
VOL. 545, FEBRUARY 15, 2008 487 COMELEC, 137 Phil. 471; 27 SCRA 835 (1969). See People v. Perez,
488
Chavez vs. Gonzales
488 SUPREME COURT REPORTS ANNOTATED
Moreover, the techniques of reviewing alleged restrictions on
Chavez vs. Gonzales
speech (overbreadth, vagueness, and so on) have been applied
standard when courts need to balance conflicting social values
differently to each category, either consciously or
and individual interests, and requires a conscious and
unconsciously. A study of free speech jurisprudence—
46

detailed consideration of the interplay of interests observable


whether here or abroad—will reveal that courts have
in a given situation of type of situation; and (c) the clear and
developed different tests as to specific types or categories of
49

present danger rule which rests on the premise that speech


speech in concrete situations; i.e., subversive speech; obscene
may be restrained because there is substantial danger that
speech; the speech of the broadcast media and of the
the speech will likely lead to an evil the government has a
traditional print media; libelous speech; speech affecting
right to prevent. This rule requires that the evil consequences
associational rights; speech before hostile audiences; symbolic
sought to be prevented must be substantive, “extremely
speech; speech that affects the right to a fair trial; and speech
serious and the degree of imminence extremely high.”
associated with rights of assembly and petition.
50
47

Generally, restraints on freedom of speech and expression As articulated in our jurisprudence, we have applied either
the dangerous tendency doctrine or clear and present
are evaluated by either or a combination of three tests, i.e., (a)
danger test to resolve free speech challenges. More recently,
the dangerous tendency doctrine which permits
we have concluded that we have generally adhered to
limitations on speech once a rational connection has been
the clear and present danger test.
established between the speech restrained and the danger
51

E.3. In Focus: Freedom of the Press


contemplated; (b) the balancing of interests tests, used as
48

Much has been written on the philosophical basis of press


a
freedom as part of the larger right of free discussion and
_______________ expression. Its practical importance, though, is more easily
grasped. It is the chief source of information on current
Revised Penal Code (with provisions on national security, libel and affairs. It is the most pervasive and perhaps most powerful
obscenity), the Civil Code (which contains two articles on privacy), the Rules
of Court (on the fair administration of justice and contempt) and certain vehicle of opinion on public questions. It is the instrument by
presidential decrees. There is also a “shield law,” or Republic Act No. 53, as which citizens keep their government informed of their needs,
amended by Republic Act No. 1477. Section 1 of this law provides protection their aspirations and their grievances. It is the sharpest
for non-disclosure of sources of information, without prejudice to one’s liability
weapon in the fight to keep government responsible and
under civil and criminal laws. The publisher, editor, columnist or duly
accredited reporter of a newspaper, magazine or periodical of general efficient. Without a vigilant press, the mistakes of every
circulation cannot be compelled to reveal the source of any information or news admini-
report appearing in said publication, if the information was released in
confidence to such publisher, editor or reporter unless the court or a _______________
Committee of Congress finds that such revelation is demanded by the security
of the state. 4 Phil. 599 (1905); People v. Nabong, 57 Phil. 455 (1933); People v.
46 See NOWAK &ROTUNDA, CONSTITUTIONAL LAW §16.1, 1131 (7th
Feleo, 57 Phil. 451 (1933).
ed. 2000). 49 This test was used by J. Ruiz-Castro in his Separate Opinion in Gonzales

47 Id.
v. COMELEC, 137 Phil. 471, 532-537; 27 SCRA 835, 899-902 (1969).
Cabansag v. Fernandez, 102 Phil. 151 (1957).
50 freedom gives no immunity from laws punishing scandalous or obscene
ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794; 323
51 matter, seditious or disloyal writings, and libelous or insulting
SCRA 811, 825 (2000). 490
489 490 SUPREME COURT REPORTS ANNOTATED
VOL. 545, FEBRUARY 15, 2008 489 Chavez vs. Gonzales
Chavez vs. Gonzales freedom of access to information; and (4) freedom of
54

stration would go uncorrected and its abuses unexposed. As circulation. 55

Justice Malcolm wrote in United States v. Bustos: 52

The interest of society and the maintenance of good government _______________


demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free words. As classically expressed, the freedom of the press embraces at the
very least the freedom to discuss truthfully and publicly matters of public
speech. The sharp incision of its probe relieves the abscesses of
concern, without previous restraint or fear of subsequent punishment. For
officialdom. Men in public life may suffer under a hostile and unjust discussion to be innocent, it must be truthful, must concern something in
accusation; the wound can be assuaged with the balm of clear which people in general take a healthy interest, and must not endanger some
conscience. important social end that the government by law protects. See
Its contribution to the public weal makes freedom of the press JOAQUING.BERNAS, S.J., THE 1987 CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES:ACOMMENTARY, 225 (2003 ed.).
deserving of extra protection. Indeed, the press benefits from 54 Freedom of access to information regarding matters of public interest

certain ancillary rights. The productions of writers are is kept real in several ways. Official papers, reports and documents, unless
classified as intellectual and proprietary. Persons who held confidential and secret by competent authority in the public interest, are
interfere or defeat the freedom to write for the press or to public records. As such, they are open and subject to reasonable regulation, to
the scrutiny of the inquiring reporter or editor. Information obtained
maintain a periodical publication are liable for damages, be confidentially may be printed without specification of the source; and that
they private individuals or public officials. source is closed to official inquiry, unless the revelation is deemed by the
E.4. Anatomy of Restrictions: Prior Restraint, ContentNeutral courts, or by a House or committee of Congress, to be vital to the security of
and Content-Based Regulations the State. Id.
55 Freedom of circulation refers to the unhampered distribution of
Philippine jurisprudence, even as early as the period under newspapers and other media among customers and among the general public.
the 1935 Constitution, has recognized four aspects of freedom It may be interfered with in several ways. The most important of these
of the press. These are (1) freedom from prior restraint; (2) is censorship. Other ways include requiring a permit or license for the
freedom from punishment subsequent to publication; (3) 53
distribution of media and penalizing dissemination of copies made without
it;55 and requiring the payment of a fee or tax, imposed either on the publisher
or on the distributor, with the intent to limit or restrict circulation. These
_______________
modes of interfering with the freedom to circulate have been constantly
stricken down as unreasonable limitations on press freedom. Thus, imposing
52 See U.S. v. Bustos, 37 Phil. 731 (1918).
a license tax measured by gross receipts for the privilege of engaging in the
53 The aspect of freedom from liability subsequent to
business of advertising in any newspaper,or charging license fees for the
publication precludes liability for completed publications of views
privilege of selling religious books are impermissible restraints on the freedom
traditionally held innocent. Otherwise, the prohibition on prior restraint
of expression. Id.citing Grosjean v. American Press Co., 297 U.S.
would be meaningless, as the unrestrained threat of subsequent punishment,
233 (1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943), and American
by itself, would be an effective prior restraint. Thus, opinions on public issues
Bible Society v. City of Manila, 101 Phil. 386 (1957). It has been held, however,
cannot be punished when published, merely because the opinions are novel or
even in the Philippines, that publishers and distributors of newspapers and
controversial, or because they clash with current doctrines. This fact does not
allied media
imply that publishers and editors are never liable for what they print. Such
491
VOL. 545, FEBRUARY 15, 2008 491 cannot complain when required to pay ordinary taxes such as the sales tax.
The exaction is valid only when the obvious and immediate effect is to restrict
Chavez vs. Gonzales oppressively the distribution of printed matter.
Considering that petitioner has argued that respondents’ 56 Id.,at p. 225.

press statement constitutes a form of impermissible prior 492


restraint, a closer scrutiny of this principle is in order, as well 492 SUPREME COURT REPORTS ANNOTATED
as its sub-specie of content-based (as distinguished from Chavez vs. Gonzales
content-neutral) regulations. or permits as prerequisites to publication including the
At this point, it should be noted that respondents in this payment of license taxes for the privilege to publish; and even
case deny that their acts constitute prior restraints. This injunctions against publication. Even the closure of the
presents a unique tinge to the present challenge, considering business and printing offices of certain newspapers, resulting
that the cases in our jurisdiction involving prior restrictions in the discontinuation of their printing and publication, are
on speech never had any issue of whether the governmental deemed as previous restraint or censorship. Any law or 57

act or issuance actuallyconstituted prior restraint. Rather, official that requires some form of permission to be had before
the determinations were always about whether the restraint publication can be made, commits an infringement of the
was justified by the Constitution. constitutional right, and remedy can be had at the courts.
Be that as it may, the determination in every case of Given that deeply ensconced in our fundamental law is the
whether there is an impermissible restraint on the freedom of hostility against all prior restraints on speech, and any act
speech has always been based on the circumstances of each that restrains speech is presumed invalid, and “any act that
58

case, including the nature of the restraint. And in its restrains speech is hobbled by the presumption of invalidity
application in our jurisdiction, the parameters of this and should be greeted with furrowed brows,” it is important59

principle have been etched on a case-to-case basis, to stress not all prior restraints on speech are
always tested by scrutinizing the governmental invalid. Certain previous restraints may be permitted
issuance or act against the circumstances in which by the Constitution, but determined only upon a careful
they operate, and then determining the appropriate evaluation of the challenged act as against the appropriate
test with which to evaluate. test by which it should be measured against.
Prior restraint refers to official governmental restrictions Hence, it is not enough to determine whether the
on the press or other forms of expression in advance of actual challenged act constitutes some form of restraint on freedom
publication or dissemination. Freedom from prior restraint is
56 of
largely freedom from government censorship of publications,
_______________
whatever the form of censorship, and regardless of whether it
is wielded by the executive, legislative or judicial branch of 57Burgos v. Chief of Staff, 218 Phil. 754; 133 SCRA 800 (1984).
the government. Thus, it precludes governmental acts that 58Gonzales v. COMELEC, 137 Phil. 471; 27 SCRA 835 (1969); ABS-CBN
required approval of a proposal to publish; licensing Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795; 323 SCRA 811, 825-826
(2000) (“Doctrinally, the Court has always ruled in favor of the freedom of
_______________ expression, and any restriction is treated an exemption.”); Social Weather
Stations v. COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496 (“[A]ny
system of prior restraint comes to court bearing a heavy burden against its
constitutionality. It is the government which must show justification for
enforcement of the restraint.”). See also Iglesia ni Cristo v. Court of 62 See Osmeña v. COMELEC, 351 Phil. 692, 718; 288 SCRA 447, 477
Appeals, 328 Phil. 893; 259 SCRA 529 (1996) (religious speech falls within the (1998). The Court looked to Adiong v. COMELEC, G.R. No. 103456, March 31,
protection of free speech). 1992, 207 SCRA 712, which had cited a U.S. doctrine, viz. “A governmental
59 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893, 928; 259 SCRA 529, regulation is sufficiently justified if it is within the constitutional power of the
544 (1996), citing Near v. Minnesota, 283 US 697 (1931); Bantam Books Inc. Government, if it furthers an important or substantial governmental interest;
v. Sullivan, 372 US 58 (1963); New York Times v. United States, 403 US if the governmental interest is unrelated to the suppression of free expression;
713 (1971). and if the incident restriction on alleged [freedom of speech & expression] is
493 no greater than is essential to the furtherance of that interest.”
VOL. 545, FEBRUARY 15, 2008 493 494
Chavez vs. Gonzales 494 SUPREME COURT REPORTS ANNOTATED
speech. A distinction has to be made whether the restraint is Chavez vs. Gonzales
(1) a content-neutral regulation, i.e., merely concerned with compelling interest standard applied to content-based
the incidents of the speech, or one that merely controls the restrictions. The test is called intermediate because the
63

time, place or manner, and under well defined standards; or 60 Court will not merely rubberstamp the validity of a law but
(2) a content-basedrestraint or censorship, i.e., the also require that the restrictions be narrowly-tailored to
restriction is based on the subject matter of the utterance or promote an important or significant governmental interest
speech. The cast of the restriction determines the test by
61 that is unrelated to the suppression of expression. The
which the challenged act is assayed with. intermediate approach has been formulated in this manner:
When the speech restraints take the form of A governmental regulation is sufficiently justified if it is within the
a contentneutral regulation, only a substantial constitutional power of the Government, if it furthers an important
or substantial governmental interest; if the governmental interest
governmental interest is required for its validity. Because 62

is unrelated to the suppression of free expression; and if the


regulations of this type are not designed to suppress any incident restriction on alleged [freedom of speech & expression] is
particular message, they are not subject to the strictest form no greater than is essential to the furtherance of that interest. 64

of judicial scrutiny but an intermediate approach— On the other hand, a governmental action that restricts
somewhere between the mere rationality that is required of freedom of speech or of the press based on content is given
any other law and the the strictest scrutiny in light of its inherent and invasive
_______________
impact. Only when the challenged act has overcome the clear
and present danger rulewill it pass constitutional
60 See J.B.L. Reyes v. Bagatsing, 210 Phil. 457; 125 SCRA muster, with the government having the burden of
65

553 (1983), Navarro v. Villegas, G.R. No. L-31687, February 18, 1970, 31 overcoming the presumed unconstitutionality.
SCRA 730; Ignacio v. Ela, 99 Phil. 346 (1956); Primicias v. Fugosa, 80 Phil.
71 (1948). _______________
61 Determining if a restriction is content-based is not always obvious. A

regulation may be content-neutral on its face but partakes of a content-based 63 NOWAK&ROTUNDA,CONSTITUTIONAL LAW §16.1, 1133 (7th ed.
restriction in its application, as when it can be shown that the government
2000). This was also called a “deferential standard of review” in Osmeña v.
only enforces the restraint as to prohibit one type of content or viewpoint. In
COMELEC, 351 Phil. 692, 718; 288 SCRA 447, 478 (1998). It was explained
this case, the restriction will be treated as a content-based regulation. The
that the clear and present danger rule is not a sovereign remedy for all
most important part of the time, place, or manner standard is the requirement
free speech problems, and its application to content-neutral regulations would
that the regulation be content-neutral both as written and applied. See
be tantamount to “using a sledgehammer to drive a nail when a regular
NOWAK&ROTUNDA,CONSTITUTIONAL LAW §16.1, 1133 (7th ed. 2000).
hammer is all that is needed.” Id., at p. 478.
64 Osmeña v. COMELEC, 351 Phil. 692, 717; 288 SCRA 447, 476, 67 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893; 259 SCRA 529 (1996).
citing Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712. 68 Schenke v. United States, 249 U.S. 47, 52 (19191), cited in Cabansag v.
It was noted that the test was actually formulated in United States v. Fernandez, 102 Phil. 151 (1957); and ABS-CBN Broadcasting Corp. v.
O’Brien, 391 U.S. 367 (1968), which was deemed appropriate for restrictions COMELEC, 380 Phil. 780, 794; 323 SCRA 811, 825 (2000).
on speech which are content-neutral. 69 Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712,

65 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893; 259 SCRA 529 (1996). cited in ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795; 323
In this case, it was found that the act of respondent Board of Review for Motion SCRA 811, 826 (2000).
Pictures and Television of rating a TV 496
495 496 SUPREME COURT REPORTS ANNOTATED
VOL. 545, FEBRUARY 15, 2008 495 Chavez vs. Gonzales
Chavez vs. Gonzales Also, the incidental restriction on speech must be no greater
Unless the government can overthrow this presumption, than what is essential to the furtherance of that interest. A 70

the content-based restraint will be struck down. 66


restriction that is so broad that it encompasses more than
With respect to content-based restrictions, the what is required to satisfy the governmental interest will be
government must also show the type of harm the speech invalidated. The regulation, therefore, must be reasonable
71

sought to be restrained would bring about—especially the and narrowly drawn to fit the regulatory purpose, with the
gravity and the imminence of the threatened harm— least restrictive means undertaken. 72

otherwise the prior restraint will be invalid. Prior restraint on Thus, when the prior restraint partakes of
speech based on its content cannot be justified by hypothetical a contentneutral regulation, it is subjected to an
fears, “but only by showing a substantive and imminent evil intermediate review. A content-based
that has taken the life of a reality already on ground.” As 67
regulation, however, bears a heavy presumption of
73

formulated, “the question in every case is whether the words invalidity and is measured against the clear and present
used are used in such circumstances and are of such a nature danger rule. The latter will pass constitutional muster only
as to create a clear and present danger that they will bring if justified by a compelling reason, and the restrictions
about the substantive evils that Congress has a right to imposed are neither overbroad nor vague. 74

prevent. It is a question of proximity and degree.” 68


Applying the foregoing, it is clear that the challenged acts
The regulation which restricts the speech content must in the case at bar need to be subjected to the clear and pre-
also serve an important or substantial government interest,
which is unrelated to the suppression of free expression. 69 _______________

_______________ 70 See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA
712, and Gonzales v. COMELEC, 137 Phil. 471; 27 SCRA 835 (1969), cited
program with “X”—on the ground that it “offend[s] and constitute[s] an in ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795; 323 SCRA
attack against other religions which is expressly prohibited by law”—was a 811, 826 (2000).
71 See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA
form of prior restraint and required the application of the clear and present
danger rule. 712.
72 See Osmeña v. COMELEC, 351 Phil. 692; 288 SCRA 447 (1998).
66 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893; 259 SCRA
73 Parenthetically, there are two types of content-based restrictions. First,
529 (1996); Gonzales v. COMELEC, 137 Phil. 471; 27 SCRA 835 (1969); ABS-
CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780; 323 SCRA the government may be totally banning some type of speech for content (total
811 (2000); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, ban). Second, the government may be requiring individuals who wish to put
2001, 357 SCRA 496. forth certain types of speech to certain times or places so that the type of
speech does not adversely affect its environment.See 75 This is based on a finding that “broadcast regulation involves unique
NOWAK&ROTUNDA,CONSTITUTIONAL LAW §16.1, 1131 (7th ed.2000). considerations,” and that “differences in the characteristics of new media
Both types of conten-based regulations are subject to strict scrutiny and the justify differences in the First Amendment standards applied to them.” Red
clear and present danger rule. Lion Broad. Co. v. Federal Communications Commission [FCC], 395 U.S. 367,
74 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893; 259 SCRA 386 (1969). See generally National Broadcasting Co. v. United States, 319 U.S.
529 (1996); Gonzales v. COMELEC, 137 Phil. 471; 27 SCRA 835 (1969); ABS- 190, 219 (1943) (noting that the public interest standard denoted to the FCC
CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780; 323 SCRA is an expansive power).
811 (2000); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, 498
2001, 357 SCRA 496. 498 SUPREME COURT REPORTS ANNOTATED
497
Chavez vs. Gonzales
VOL. 545, FEBRUARY 15, 2008 497
they would otherwise apply to content-based
Chavez vs. Gonzales
restrictions. According to U.S. Courts, the three major
76

sent danger rule, as they are content-based restrictions. reasons why broadcast media stands apart from print media
The acts of respondents focused solely on but one object—a are: (a) the scarcity of the frequencies by which the medium
specific content—fixed as these were on the alleged taped operates [i.e., airwaves are physically limited while print
conversations between the President and a COMELEC medium may be limitless]; (b) its “pervasiveness” as a
77

official. Undoubtedly these did not merely provide regulations


medium; and (c) its unique accessibility to children. Because 78

as to the time, place or manner of the dissemination of speech cases involving


or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media _______________
Finally, comes respondents’ argument that the challenged act
76 See Federal Communications Commission [FCC] v. Pacifica
is valid on the ground that broadcast media enjoys free speech
Foundation, 438 U.S. 726 (1978); Sable Communications v. FCC, 492 U.S.
rights that are lesser in scope to that of print media. We next 115 (1989); and Reno v. American Civil Liberties Union [ACLU], 521 U.S. 844,
explore and test the validity of this argument, insofar as it has 874 (1997). In these cases, U.S. courts disregarded the argument that the
been invoked to validate a content-based restriction on offended listener or viewer could simply turn the dial and avoid the unwanted
broadcast [thereby putting print and broadcast media in the same footing],
broadcast media.
reasoning that because the broadcast audience is constantly tuning in and out,
The regimes presently in place for each type of prior warnings cannot protect the listener from unexpected program content.
media differ from one other. Contrasted with the regime 77 Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969). Red Lion involved

in respect of books, newspapers, magazines and traditional the application of the fairness doctrine and whether someone personally
attacked had the right to respond on the broadcast medium within the purview
printed matter, broadcasting, film and video have been of FCC regulation. The court sustained the regulation. The Court in Red Lion
subjected to regulatory schemes. reasoned that because there are substantially more individuals who want to
The dichotomy between print and broadcast media traces broadcast than there are frequencies available, this “scarcity of the spectrum”
its origins in the United States. There, broadcast radio and necessitates a stricter standard for broadcast media, as opposed to newspapers
and magazines. See generally National Broadcasting v. United States, 319
television have been held to have limited First Amendment U.S. 190, 219 (1943) (noting that the public interest standard denoted to the
protection, and U.S. Courts have excluded broadcast media
75
FCC is an expansive power).
from the application of the “strict scrutiny” standard that 78 See Federal Communications Commission v. Pacifica Foundation, 438

U.S. 726 (1978); Sable Communications v. FCC, 492 U.S. 115 (1989);
_______________ and Reno v. American Civil Liberties Union [ACLU], 521 U.S. 844, 874 (1997).
In FCC v. Pacifica Foundation, involving an FCC decision to require
broadcasters to channel indecent programming away from times of the day
when there is a reasonable risk that children may be in the audience, the U.S. foreign notion to the American Constitution that the government may restrict
Court found that the broadcast medium was an intrusive and pervasive one. the speech of some in order to enhance the relative voice of others [the idea
In reaffirming that this medium should receive the most limited of First being that voting is a form of speech]. But this Court then declared that the
Amendment protections, the U.S. Court held that the rights of the public to same does not hold true of the Philippine Constitution, the notion “being in
avoid indecent speech trump those of the broadcaster to disseminate such fact an animating principle of that document.” 351 Phil. 692, 718; 288 SCRA
speech. The justifications for this ruling were two 447, 478 (1998).
499 500
VOL. 545, FEBRUARY 15, 2008 499 500 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales Chavez vs. Gonzales
broadcast media need not follow “precisely the same approach media, particularly as to which test would govern
that [U.S. courts] have applied to other media,” nor go “so far content-based prior restraints.
as to demand that such regulations serve ‘compelling’ Our cases show two distinct features of this
government interests,” they are decided on whether the
79 dichotomy. First, the difference in treatment, in the main, is
“governmental restriction” is narrowly tailored to in the regulatory scheme applied to broadcast media that is
further a substantial governmental interest,” or the 80 not imposed on traditional print media, and narrowly
intermediate test. confined to unprotected speech (e.g., obscenity, pornography,
As pointed out by respondents, Philippine jurisprudence seditious and inciting speech), or is based on a compelling
has also echoed a differentiation in treatment between government interest that also has constitutional protection,
broadcast and print media. Nevertheless, a review of such as national security or the electoral process.
Philippine case law on broadcast media will show Second, regardless of the regulatory schemes that
that—as we have deviated with the American broadcast media is subjected to, the Court has consistently
conception of the Bill of Rights —we likewise did not
81 held that the clear and present danger test applies to
adopt en masse the U.S. conception of free speech as it contentbased restrictions on media, without making a
relates to broadcast distinction as to traditional print or broadcast media.
The distinction between broadcast and traditional print
_______________
media was first enunciated in Eastern Broadcasting
fold. First, the regulations were necessary because of the pervasive Corporation (DYRE) v. Dans, wherein it was held that “[a]ll
82

presence of broadcast media in American life, capable of injecting offensive forms of media, whether print or broadcast, are entitled to the
material into the privacy of the home, where the right “to be left alone plainly broad protection of the freedom of speech and expression
outweighs the First Amendment rights of an intruder.” Second, the U.S. Court
clause. The test for limitations on freedom of expression
found that broadcasting “is uniquely accessible to children, even those too
young to read.” The Court dismissed the argument that the offended listener continues to be the clear and present danger rule…” 83

or viewer could simply turn the dial and avoid the unwanted broadcast, Dans was a case filed to compel the reopening of a radio
reasoning that because the broadcast audience is constantly tuning in and out, station which had been summarily closed on grounds of
prior warnings cannot protect the listener from unexpected program content.
79 FCC v. League of Women Voters, 468 U.S. 364, 376 (1984).
national security. Although the issue had become moot and
80 Id., at p. 380. academic because the owners were no longer interested to
81 See Estrada v. Escritor (Resolution), A.M. No. P-02-1651, June 22, 2006, reopen, the Court still proceeded to do an analysis of the case
492 SCRA 1 (free exercise of religion); and Osmeña v. COMELEC, 351 Phil. and made formulations to serve as guidelines for all inferior
692, 718; 288 SCRA 447, 478 (1998) (speech restrictions to promote voting
rights). The Court in Osmeña v. COMELEC, for example, noted that it is a
courts and bodies exercising quasi-judicial functions.
Particularly, the Court made a detailed exposition as to what the lives of all citizens, Material presented over the airwaves
needs be considered in cases involving broadcast media. confronts the citizen, not only in public, but in the privacy of his
Thus: 84 home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from
_______________ making certain material available to children, but the same
selectivity cannot be done in radio or television, where the listener
82 G.R. No. L-59329, July 19, 1985, 137 SCRA 628. or viewer is constantly tuning in and out.
83 Id. Similar considerations apply in the area of national security.
84 Id., at pp. 634-637.
The broadcast media have also established a uniquely pervasive
501
presence in the lives of all Filipinos. Newspapers and current books
VOL. 545, FEBRUARY 15, 2008 501
are found only in metropolitan areas and in the poblaciones of
Chavez vs. Gonzales 502
“x x x xxx xxx 502 SUPREME COURT REPORTS ANNOTATED
(3) All forms of media, whether print or broadcast, are entitled Chavez vs. Gonzales
to the broad protection of the freedom of speech and expression
municipalities accessible to fast and regular transportation. Even
clause. The test for limitations on freedom of expression
here, there are low income masses who find the cost of books,
continues to be the clear and present danger rule, that words
newspapers, and magazines beyond their humble means. Basic
are used in such circumstances and are of such a nature as to create
needs like food and shelter perforce enjoy high priorities.
a clear and present danger that they will bring about the
On the other hand, the transistor radio is found everywhere. The
substantive evils that the lawmaker has a right to prevent, In
television set is also becoming universal. Their message may be
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief
simultaneously received by a national or regional audience of
Justice Enrique M. Fernando cites at least nine of our decisions
listeners including the indifferent or unwilling who happen to be
which apply the test. More recently, the clear and present danger
within reach of a blaring radio or television set. The materials
test was applied in J.B.L. Reyes in behalf of the Anti-Bases
broadcast over the airwaves reach every person of every age,
Coalition v. Bagatsing. (4) The clear and present danger test,
persons of varying susceptibilities to persuasion, persons of
however, does not lend itself to a simplistic and all embracing
different I.Q.s and mental capabilities, persons whose reactions to
interpretation applicable to all utterances in all forums.
inflammatory or offensive speech would be difficult to monitor or
Broadcasting has to be licensed. Airwave frequencies have to be
predict. The impact of the vibrant speech is forceful and immediate.
allocated among qualified users. A broadcast corporation cannot
Unlike readers of the printed work, the radio audience has lesser
simply appropriate a certain frequency without regard for
opportunity to cogitate analyze, and reject the utterance.
government regulation or for the rights of others.
(5) The clear and present danger test, therefore, must take the
All forms of communication are entitled to the broad protection
particular circumstances of broadcast media into account. The
of the freedom of expression clause. Necessarily, however, the
supervision of radio stations-whether by government or through
freedom of television and radio broadcasting is somewhat lesser in
selfregulation by the industry itself calls for thoughtful, intelligent
scope than the freedom accorded to newspaper and print media.
and sophisticated handling.
The American Court in Federal Communications Commission v.
The government has a right to be protected against broadcasts
Pacifica Foundation (438 U.S. 726), confronted with a patently
which incite the listeners to violently overthrow it. Radio and
offensive and indecent regular radio program, explained why radio
television may not be used to organize a rebellion or to signal the
broadcasting, more than other forms of communications, receives
start of widespread uprising. At the same time, the people have a
the most limited protection from the free expression clause. First,
right to be informed. Radio and television would have little reason
broadcast media have established a uniquely pervasive presence in
for existence if broadcasts are limited to bland, obsequious, or the freedom accorded to newspaper and print media,” it was
pleasantly entertaining utterances. Since they are the most not as to what test should be applied, but the context by which
convenient and popular means of disseminating varying views on requirements of licensing, allocation of airwaves, and
public issues, they also deserve special protection. application of norms to unprotected speech. 85

(6) The freedom to comment on public affairs is essential to the


vitality of a representative democracy. In the 1918 case of United _______________
States v. Bustos(37 Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government 85 There is another case wherein the Court had occasion to refer to the

demand a full discussion of public affairs. Complete liberty to differentiation between traditional print media and broadcast media, but of
comment on the conduct of public men is a scalpel in the case of free limited application to the case at bar inasmuch as the issues did not invoke a
free-speech challenge, but due process and equal protection.
speech. The sharp incision of its probe relieves the abscesses of See Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
officialdom. Men in public life may suffer under a hostile and an COMELEC, 352 Phil. 153; 289 SCRA 337 (1998) (challenge to legislation
unjust accusation; the wound can be assuaged with the balm of a requiring broadcast stations to provide COMELEC Time free of charge).
clear conscience. A public officer must not be too thin-skinned with 504
refer 504 SUPREME COURT REPORTS ANNOTATED
503 Chavez vs. Gonzales
VOL. 545, FEBRUARY 15, 2008 503 In the same year that the Dans case was decided, it was
Chavez vs. Gonzales reiterated in Gonzales v. Katigbak, that the test to determine
86

ence to comment upon his official acts. Only thus can the free expression challenges was the clear and present danger,
intelligence and dignity of the individual be exalted.
again without distinguishing the media. Katigbak, strictly
87

(7) Broadcast stations deserve the special protection given to all


speaking, does not treat of broadcast media but motion
forms of media by the due process and freedom of expression clauses
of the Constitution.” [Citations omitted] pictures. Although the issue involved obscenity standards as
It is interesting to note that the Court in Dans adopted the applied to movies, the Court concluded its decision with the
88

arguments found in U.S. jurisprudence to justify following obiter dictum that a less liberal approach would be
differentiation of treatment (i.e., the scarcity, pervasiveness used to resolve obscenity issues in television as opposed to
and accessibility to children), but only after categorically motion pictures:
“All that remains to be said is that the ruling is to be limited to the
declaring that “the test for limitations on freedom of
concept of obscenity applicable to motion pictures. It is the
expression continues to be the clear and present
consensus of this Court that where television is concerned, a less
danger rule,” for all forms of media, whether print or liberal approach calls for observance. This is so because unlike
broadcast. Indeed, a close reading of the above-quoted motion pictures where the patrons have to pay their way, television
provisions would show that the differentiation that the Court reaches every home where there is a set. Children then will likely
in Dans referred to was narrowly restricted to what is be among the avid viewers of the programs therein shown…..It
otherwise deemed as “unprotected speech” (e.g., obscenity, cannot be denied though that the State as parens patriae is called
national security, seditious and inciting speech), or to validate upon to manifest an attitude of caring for the welfare of the young.”
a licensing or regulatory scheme necessary to allocate the More recently, in resolving a case involving the conduct of exit
limited broadcast frequencies, which is absent in print media. polls and dissemination of the results by a broadcast
Thus, when this Court declared in Dans that the freedom company, we reiterated that the clear and present danger rule
given to broadcast media was “somewhat lesser in scope than
_______________ the clear and present danger rule, the rule we “unquestionably” adhere to. The
framing of the guidelines issued by the Court clearly showed that the issue
86 G.R. No. L-69500, July 22, 1985, 137 SCRA 717. In this case, the involved not only the conduct of the exit polls but also its dissemination by
classification of a movie as “For Adults Only” was challenged, with the issue broadcast media. And yet, the Court did not distinguish, and still applied the
focused on obscenity as basis for the alleged invasion of the right to freedom clear and present danger rule.
90 351 Phil. 692; 288 SCRA 447 (1998) (challenge to legislation which
on artistic and literary expression embraced in the free speech guarantees of
the Constitution. The Court held that the test to determine free expression sought to equalize media access through regulation).
91 Id., at p. 718; p. 478.
was the clear and present danger rule. The Court found there was an abuse of
92 Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
discretion, but did not get enough votes to rule it was grave. The decision
specifically stated that the ruling in the case was limited to concept of COMELEC, 352 Phil. 153; 289 SCRA 337 (1998) (challenge to legislation
obscenity applicable to motion pictures. Id., at pp. 723-729. requiring broadcast stations to provide COMELEC Time free of charge).
87 Id., at p. 725. 506
88 Id.
506 SUPREME COURT REPORTS ANNOTATED
505
Chavez vs. Gonzales
VOL. 545, FEBRUARY 15, 2008 505
condition for the grant of the media’s franchise, without going
Chavez vs. Gonzales
into which test would apply.
is the test we unquestionably adhere to issues that involve That broadcast media is subject to a regulatory regime
freedoms of speech and of the press. 89
absent in print media is observed also in other jurisdictions,
This is not to suggest, however, that the clear and where the statutory regimes in place over broadcast media
present danger rule has been applied to all cases that include elements of licensing, regulation by administrative
involve the broadcast media. The rule applies to all media, bodies, and censorship. As explained by a British author:
including broadcast, but only when the challenged act is a “The reasons behind treating broadcast and films differently from
content-based regulation that infringes on free speech, the print media differ in a number of respects, but have a common
expression and the press. Indeed, in Osmeña v. historical basis. The stricter system of controls seems to have been
COMELEC, which also involved broadcast media, the Court
90
adopted in answer to the view that owing to their particular
refused to apply the clear and present danger rule to a impact on audiences, films, videos and broadcasting require a
COMELEC regulation of time and manner of advertising of system of prior restraints, whereas it is now accepted that books
political advertisements because the challenged restriction and other printed media do not. These media are viewed as
was contentneutral. And in a case involving due process and
91
beneficial to the public in a number of respects, but are also seen as
equal protection issues, the Court in Telecommunications and possible sources of harm.” 93

Broadcast Attorneys of the Philippines v. COMELEC treated 92


Parenthetically, these justifications are now the subject of
a restriction imposed on a broadcast media as a reasonable debate. Historically, the scarcity of frequencies was thought
to provide a rationale. However, cable and satellite
_______________ television have enormously increased the number of actual
and potential channels. Digital technology will further
89 ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794; 323
increase the number of channels available. But still, the
SCRA 811, 825 (COMELEC Resolution restraining ABSCBN, a corporation
engaged in broadcast media of television and radio, from conducting exit argument persists that broadcasting is the most influential
surveys after the 1998 elections). Although the decision was rendered after the means of communication, since it comes into the home, and so
1998 elections, the Court proceeded to rule on the case to rule on the issue of much time is spent watching television. Since it has a unique
the constitutionality of holding exit polls and the dissemination of data derived
impact on people and affects children in a way that the print
therefrom. The Court ruled that restriction on exit polls must be tested against
media normally does not, that regulation is said to be 98 The current rationales used to support regulation of the broadcast media
become unpersuasive in light of the fact that the unregulated Internet and the
necessary in order to preserve pluralism. It has been argued regulated broadcast media share many of the same features. Id. In other
further that a significant main threat to free expression—in words, as the Internet and broadcast media become identical, for all intents
terms of diversity—comes not from government, but from and purposes, it makes little sense to regulate one but not the other in an effort
private corporate bodies. These developments show a need for to further First Amendment principles. Indeed, as Internet technologies
advance, broadcasters will have little incentive to continue developing
_______________ broadcast programming under the threat of regulation when they can
disseminate the same content in the same format through the unregulated
93HELENFENWICK,CIVIL LIBERTIES AND HUMAN RIGHTS 296 (3rd Internet. In conclusion, “the theory of partial regulation, whatever its merits
ed. 2002). for the circumstances of the last fifty years,
508
507
VOL. 545, FEBRUARY 15, 2008 507 508 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales Chavez vs. Gonzales
a reexamination of the traditional notions of the scope and F. The Case At Bar
extent of broadcast media regulation. 94
Having settled the applicable standard to content-based
The emergence of digital technology—which has led to the restrictions on broadcast media, let us go to its application to
convergence of broadcasting, telecommunications and the the case at bar. To recapitulate, a governmental action that
computer industry—has likewise led to the question of restricts freedom of speech or of the press based on
whether the regulatory model for broadcasting will continue content is given the strictest scrutiny, with
to be appropriate in the converged environment. Internet, for 95
the government having the burden of overcoming the
example, remains largely unregulated, yet the Internet and presumed unconstitutionality by the clear and present
the broadcast media share similarities, and the rationales
96
danger rule. This rule applies equally to all kinds of
used to support broadcast regulation apply equally to the media, including broadcast media.
Internet. Thus, it has been argued that courts, legislative
97
This outlines the procedural map to follow in cases like
bodies and the government agencies regulating media must the one at bar as it spells out the following: (a) the test; (b) the
agree to regulate both, regulate neither or develop a new presumption; (c) the burden of proof; (d) the party to discharge
regulatory framework and rationale to justify the differential the burden; and (e) the quantum of evidence necessary. On
treatment. 98
the basis of the records of the case at bar, respondents who
have the burden to show that these acts do not abridge
_______________ freedom of speech and of the press failed to hurdle the clear
and present danger test. It appears that the great evilwhich
Id.
government wants to prevent is the airing of a tape recording
94

95 Stephen J. Shapiro, How Internet Non-Regulation Undermines The


Rationales Used To Support Broadcast Regulation, 8FALLMEDIA L.&POL’Y in alleged violation of the anti-wiretapping law. The records
1, 2 (1999). of the case at bar, however, are confused and confusing, and
96 Technological advances, such as software that facilitates the delivery of
respondents’ evidence falls short of satisfying the clear and
live, or real-time, audio and video over the Internet, have enabled Internet
content providers to offer the same services as broadcasters. Indeed, these
present danger test. Firstly, the various statements of the
advancements blur the distinction between a computer and a television. Id., Press Secretary obfuscate the identity of the voices in the tape
at p. 13. recording. Secondly, the integrity of the taped conversation
97 Id.
is also suspect. The Press Secretary showed to the public two consequence. But to repeat, the need to prevent their
versions, one supposed to be a “complete” version and the violation cannot per se trump the exercise of free
other, an “altered” version. Thirdly, the evidence of the speech and free press, a preferred right whose breach
respondents on the who’s and the how’s of the wiretapping act can lead to greater evils. For this failure of the respondents
is ambivalent, especially considering the tape’s different alone to offer proof to satisfy the clear and present danger test,
versions. The identity of the wire-tappers, the manner of its the Court has no option but to uphold the exercise of free
commission and other related and relevant proofs are some of speech and free press. There is no showing that the feared
the invisibles of this case. Fourthly, given all these unsettled violation of the anti-wiretapping law clearly endangers
the national security of the State.
_______________
This is not all the faultline in the stance of the respondents.
will be unworkable in the media landscape of the future.” Id., at p. 23. We slide to the issue of whether the mere press
509 statements of the Secretary of Justice and of the NTC in
VOL. 545, FEBRUARY 15, 2008 509 question constitute a form of content-based prior restraint
Chavez vs. Gonzales that has transgressed the Constitution. In resolving this is-
510
facets of the tape, it is even arguable whether its airing would
violate the anti-wiretapping law.
510 SUPREME COURT REPORTS ANNOTATED
We rule that not every violation of a law will justify Chavez vs. Gonzales
straitjacketing the exercise of freedom of speech and sue, we hold that it is not decisive that the press
of the press. Our laws are of different kinds and statements made by respondents were not reduced in
doubtless, some of them provide norms of conduct which even or followed up with formal orders or circulars. It is
if violated have only an adverse effect on a person’s private sufficient that the press statements were made by
comfort but does not endanger national security. There are respondents while in the exercise of their official
laws of great significance but their violation, by itself and functions. Undoubtedly, respondent Gonzales made his
without more, cannot support suppression of free speech statements as Secretary of Justice, while the NTC issued its
and free press. In fine, violation of law is just a factor, a statement as the regulatory body of media. Any act done,
vital one to be sure, which should be weighed in adjudging such as a speech uttered, for and on behalf of the
whether to restrain freedom of speech and of the press. government in an official capacity is covered by the
The totality of the injurious effects of the violation to rule on prior restraint. The concept of an “act” does not
private and public interest must be calibrated in light of the limit itself to acts already converted to a formal order
preferred status accorded by the Constitution and by related or official circular. Otherwise, the non formalization of
international covenants protecting freedom of speech and of an act into an official order or circular will result in
the press. In calling for a careful and calibrated measurement the easy circumvention of the prohibition on prior
of the circumference of all these factors to determine restraint. The press statements at bar are acts that should
compliance with the clear and present danger test, the Court be struck down as they constitute impermissible forms of prior
should not be misinterpreted as devaluing violations of restraints on the right to free speech and press.
law. By all means, violations of law should be vigorously There is enough evidence of chilling effect of the
prosecuted by the State for they breed their own evil complained acts on record. The warnings given to
media came from no less the NTC, a regulatory agency that Quisumbing, J., In the result and I join in the Separate
can cancel the Certificate of Authority of the radio and Concurring Opinion of J. Carpio.
broadcast media. They also came from the Secretary of Sandoval-Gutierrez, J., Please see my Separate
Justice, the alter ego of the Executive, who wields the Concurring Opinion.
awesome power to prosecute those perceived to be violating Carpio, J., See Separate Concurring Opinion.
the laws of the land. After the warnings, the KBP Austria-Martinez, J., I also join in the Separate
inexplicably joined the NTC in issuing an ambivalent Joint Opinion of J.Carpio.
Press Statement. After the warnings, petitioner Chavez was Corona, J., I join the dissent of Mr. Justice Nachura.
left alone to fight this battle for freedom of speech and of the Carpio-Morales, J., I join in the Separate Concurring
press. This silence on the sidelines on the part of some media Opinion of J. Carpio.
practitioners is too deafening to be the subject of Azcuna, J., I concur in a Separate Opinion.
misinterpretation. Tinga, J., Please see Separate Opinion (Dissenting
The constitutional imperative for us to strike down and Concurring).
unconstitutional acts should always be exercised with care Chico-Nazario, J., Please see my Separate Dissenting
and in light of the distinct facts of each case. For there are no Opinion.
hard and fast rules when it comes to slippery constitutional 512
questions, and the limits and construct of relative freedoms 512 SUPREME COURT REPORTS ANNOTATED
are Chavez vs. Gonzales
511 Velasco, Jr., J., Please see Separate Concurring and
VOL. 545, FEBRUARY 15, 2008 511 Dissenting Opinion.
Chavez vs. Gonzales Nachura, J., Please see my dissent.
never set in stone. Issues revolving on their construct must be Leonardo-De Castro, J., I join the dissent of Justice
decided on a case to case basis, always based on the peculiar Nazario and Justice Nachura.
shapes and shadows of each case. But in cases where the CONCURRING OPINION
challenged acts are patent invasions of a constitutionally
protected right, we should be swift in striking them down SANDOVAL-GUTIERREZ, J.:
as nullities per se. A blow too soon struck for freedom is
preferred than a blow too late. “Where they have burned books, they will end in burning
In VIEW WHEREOF, the petition is GRANTED. The writs human beings.”
of certiorari and prohibition are hereby issued, nullifying the These are the prophetic words of the German Author Heinrich
official statements made by respondents on June 8, and 11, Heine when the Nazis fed to the flames the books written by
2005 warning the media on airing the alleged wiretapped Jewish authors. True enough, the mass extermination of Jews
conversation between the President and other personalities, followed a few years later. What was first a severe form of
for constituting unconstitutional prior restraint on the book censorship ended up as genocide.
exercise of freedom of speech and of the press. Today, I vote to grant the writs of certiorari and prohibition
SO ORDERED. mindful of Heine’s prophecy. The issuance of the Press
Ynares-Santiago and Reyes, JJ., concur. Release by the National Telecommunications Commission
(NTC) is a form of censorship. To allow the broadcast media These are the same justifications why censorship is
to be burdened by it is the first misstep leading to the anathema to freedom of expression. Censorship is that
strangling of our citizens. We must strike this possibility officious functionary of the repressive government who tells
while we still have a voice. the citizen that he may speak only if allowed to do so, and no
I fully concur with the well-written ponencia of Mr. Chief more and no less than what he is permitted to say on pain of
Justice Reynato S. Puno and that of Mr. Justice Antonio T. punishment should he be so rash as to disobey. Censorship 3

Carpio. may come in the form of prior restraint or subsequent


The Universal Declaration of Human Rights guarantees punishment. Prior restraint means official governmental
that “everyone has the right to freedom of opinion and restrictions on the press or other forms of expression in
expression.”Accordingly, this right “includes the freedom advance of actual publication or dissemination. Its most 4

to hold opinions without interference and impart blatant form


information and ideas through any media regardless of
_______________
frontiers.” At the same time, our Constitution mandates
1

2 3 S.C.R. 697 (1990)


_______________ 3 Separate Opinion of Chief Justice Hilario G. Davide Jr. (ret.),
in Kapisanan ng mga Brodkasters sa Pilipinas, G.R. No. 102983. March 5,
1Article 19, Adopted on December 10, 1948.
1992, 207 SCRA 1.
513 4 Bernas, The 1987 Constitution of the Republic of the Philippines, A

VOL. 545, FEBRUARY 15, 2008 513 Commentary, 2003 ed., p. 225.
Chavez vs. Gonzales 514
that “no law shall be passed abridging the freedom of 514 SUPREME COURT REPORTS ANNOTATED
speech, of expression, or of the press, or the right of the Chavez vs. Gonzales
people to peaceably assemble and petition the is a system of licensing administered by an executive
government for redress of grievances.” officer. Similar to this is judicial prior restraint which takes
5

These guarantees are testaments to the value that the form of an injunction against publication. And equally
6

humanity accords to the above-mentioned freedoms— objectionable as prior restraint is the imposition of license
commonly summed up as freedom of expression. The taxes that renders publication or advertising more
justifications for this high regard are specifically identified by burdensome. On 7 the other hand, subsequent
Justice Mclachlin of the Canadian Supreme Court in Her punishment is the imposition of liability to the individual
Majesty The Queen v. Keegstra, to wit: (1) Freedom of
2 exercising his freedom. It may be in any form, such as penal,
expression promotes the free flow of ideas essential to political civil or administrative penalty.
democracy and democratic institutions, and limits the ability I The Issuance of the Press Release Constitutes Censorship
of the State to subvert other rights and freedoms; (2) it In the case at bar, the first issue is whether the Press Release
promotes a marketplace of ideas, which includes, but is not of the NTC constitutes censorship. Reference to its pertinent
limited to, the search for truth; (3) it is intrinsically valuable portions is therefore imperative. Thus:
as part of the selfactualization of speakers and listeners; Considering that these taped conversations have not been duly
and (4) it is justified by the dangers for good government of authenticated nor could it be said at this time that the tapes contain
allowing its suppression. an accurate or truthful representation of what was recorded
therein, it is the position of the [NTC] that the continuous airing or licensing was rightly defended, the defense was for the
broadcast of the said taped conversations by radio and television purpose, not of regulation of broadcast content, but for
stations is a continuing violation of the Anti-Wiretapping Law and the proper allocation of airwaves. In the present case, what
the conditions of the Provisional Authority and/or Certificate of the NTC intends to regulate are the contents of the Garci
Authority issued to these radio and television stations. It has been
Tapes—the alleged taped conversation involving the
subsequently established that the said tapes are false and/or
President of the Philippines and a Commissioner of the
fraudulent after a prosecution or appropriate investigation, the
concerned radio and television companies are hereby warned that Commission on Election. The reason given is that it is a “false
their broadcast/airing of such false information and/or information or willful misrepresentation.” As aptly stated by
willful misrepresentation shall be a just cause for the Mr. Justice Antonio T. Carpio that “the NTC action in
suspension, revocation and /or cancel restraining the airing of the Garci Tapes is a content-based
prior restraint because it is directed at the message of
_______________ the Garci Tapes.”
5 Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961); Freedman v.
History teaches us that licensing has been one of the most
Maryland, 380 U.S. 51 (1965). potent tools of censorship. This powerful bureaucratic system
6 Near v. Minnesota, 283 U.S. 697 (1931); New York Times Co. v. United
of censorship in Medieval Europe was the target of John
States, 403 U.S. 713 (1971). Milton’s speech Areopagita to the Parliament of England in
7 Supra, footnote 4, citing Grosjean v. American Press Co., 297 U.S.
233 (1936), Murdock v. Pennsylvania, 319 U.S. 105 (1943) and American Bible
_______________
Society v. City of Manila, 101 Phil. 386 (1957).
515 8137 SCRA 628 (1985).
VOL. 545, FEBRUARY 15, 2008 515 516
Chavez vs. Gonzales 516 SUPREME COURT REPORTS ANNOTATED
lation of the licenses or authorizations issued to said Chavez vs. Gonzales
companies. 1644. Under the Licensing Act of 1643, all printing presses
9

xxx xxx
and printers were licensed and nothing could be published
The [NTC] will not hesitate, after observing the
without the prior approval of the State or the Church
requirements of due process, to apply with full force the
provisions of said Circulars and their accompanying Authorities. Milton vigorously opposed it on the ground of
sanctions on erring radio and television stations and their freedom of the press. His strong advocacy led to its collapse in
owners/operators. 1695. In the U.S., the first encounter with a law imposing a
The threat of suspension, prior restraint is in Near v. Minnesota. Here, the majority
10

revocation and/or cancellation of voided the law authorizing the permanent enjoining of future
the licenses or authorization hurled against radio and violations by any newspaper or periodical if found to have
television stations should they air the Garci Tape is definitely published or circulated an “obscene, lewd and lascivious” or
a form of prior restraint. The license or authorization is the “malicious, scandalous and defamatory” issue. While the
life of every media station. If withheld from them, their very dissenters maintained that the injunction constituted no prior
existence is lost. Surely, no threat could be more discouraging restraint, inasmuch as that doctrine applied to prohibitions of
to them than the suspension or revocation of their licenses. publication without advance approval of an executive official,
In Far Eastern Broadcasting v. Dans, while the need for
8 the majority deemed the difference of no consequence, since in
order to avoid a contempt citation, the newspaper would have subsequent punishment, an equally abhorred form of
to clear future publications in advance with the judge. In censorship. This should not also be countenanced. It must be
other similar cases, the doctrine of prior restraint was stressed that the evils to be prevented are not the censorship
frowned upon by the U.S. Court as it struck down loosely of the press merely, but any action of the government by
drawn statutes and ordinances requiring licenses to hold means of which it might prevent such free and general
meetings and parades and to distribute literature, with discussion of public matters as seems absolutely
uncontrolled discretion in the licensor whether or not to issue essential to prepare the people for an intelligent
them, and as it voided other restrictions on First Amendment exercise of their rights as citizens. There is logic in the
14

rights. Then there came the doctrine that prior licensing or


11 proposition that the liberty of the press will be rendered
permit systems were held to be constitutionally valid so long a “mockery and a delusion” if, while every man is at liberty
as the discretion of the issuing official is limited to questions to publish what he pleases, the public authorities might
of times, places and manners. And in New York Times Com-
12 nevertheless punish him for harmless publications. In this
regard, the fear of subsequent punishment has the same effect
_______________
as that of prior restraint.
9 http://www.beaconforfreedom.org/about_project/history.html,The Long It being settled that the NTC’s Press Release constitutes
History of Censorship, p. 3. censorship of broadcast media, the next issue is whether such
10 283 U.S. 697 (1931).
censorship is justified.
11 Lovell v. Griffin, 303 U.S. 444 (1938); Cantwell v. Connecticut, 310 U.S.

296(1940); Kunz v. New York, 340 U.S. 290 (1951); Nietmotko v. _______________
Maryland, 340 U.S. 268(1951); Staub v. City of Baxley, 355 U.S. 313 (1958).
12 Cox v. New Hampshire, 312 U.S. 569 (1941); Paulos v. New 13403 U.S. 713. 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971).
Hampshire, 345 U.S. 395 (1953). 14T. Cooley, A Treatise on the Constitutional Limitations Which Rest upon
517 the Legislative powers of the States of the American Union 885-86 (8th ed.
VOL. 545, FEBRUARY 15, 2008 517 1927).
Chavez vs. Gonzales 518
pany v. United States, the same Court, applying the doctrine
13
518 SUPREME COURT REPORTS ANNOTATED
of prior restraint from Near, considered the claims that the Chavez vs. Gonzales
publication of the Pentagon Papers concerning the Vietnam II The Issuance of the Press Release Constitutes an Unjustified
War would interfere with foreign policy and prolong the war Form of Censorship
too speculative. It held that such claim could not overcome the Settled is the doctrine that any system of prior restraint of
strong presumption against prior restraints. Clearly, expression comes to this Court bearing a presumption against
content-based prior restraint is highly abhorred in its constitutional validity. The Government thus carries a
15

every jurisdiction. heavy burden of showing justification for the enforcement of


Another objectionable portion of the NTC’s Press Release such a restraint. 16

is the warning that it will not hesitate to apply with full Various tests have been made to fix a standard by which to
force the provisions of the Circulars and their determine what degree of evil is sufficiently substantial to
accompanying sanctions on erring radio and television justify a resort to abridgment of the freedom of expression as
stations and their owners/operators. This is a threat of a a means of protection and how clear and imminent and likely
the danger is. Among these tests are the Clear and Present not make the broadcast media privy to the crime. It must be
Danger, Balancing, Dangerous Tendency, Vagueness, stressed that it was a government official who initially
Overbreadth, and Least Restrictive Means. released the Garci Tapes, not the media.
Philippine jurisprudence shows that we have generally In view of the presence of various competing interests, I
adhered to the clear and present danger test. Chief Justice believe the present case must also be calibrated using
Puno, in his ponencia, has concluded that the Government the balancing test. As held in American Communication
has not hurdled this test. He cited four (4) reasons to which I Association v. Douds, “when a particular conduct is
18

fully concur. regulated in the interest of public order, and the


The justification advanced by the NTC in issuing the Press regulation results in an indirect, conditional, partial
Release is that “the taped Conversations have not been abridgement of speech, the duty of the courts is to
duly authenticated nor could it be said at this time that determine which of these two conflicting interests
the tape contains an accurate and truthful demand the greater protection under the
representation of what was recorded therein” and that circumstances presented.” In the present case, perched at
“its continuous airing or broadcast is a continuing the one hand of the scale is the government’s interest to
violation of the Anti-Wiretapping Law.” maintain public order, while on the other hand is the interest
To prevent the airing of the Garci Tapes on the premise of the public to know the truth about the last national election
that their contents may or may not be true is not a valid and to be fully informed. Which of these interests should be
reason for its suppression. In New York Times v. advanced? I believe it should be that of the people.
Sullivan, Jus-
17 The right of the people to know matters pertaining
to the integrity of the election process is of paramount
_______________
importance. It cannot be sideswiped by the mere speculation
15 Bantam Books, Inc. vs. Sullivan, 372 U.S. 58 (1963). that a public disturbance will ensue. Election is a sacred
16 Supra, p. 228, footnote 4. instrument of democracy. Through it, we choose the
17 376 U.S. 254 (1964).
people who will govern us. We entrust to them our
519
VOL. 545, FEBRUARY 15, 2008 519 _______________
Chavez vs. Gonzales
339 U.S. 382 (1950).
18

tice William Brennan, Jr. states that the authoritative 520


interpretation of the First Amendment guarantees have 520 SUPREME COURT REPORTS ANNOTATED
consistently refused to recognize an exception for any test of Chavez vs. Gonzales
truth—whether administered by judges, jurists, or businesses, our welfare, our children, our
administrative officials—and especially not one that puts the lives. Certainly, each one of us is entitled to know how it was
burden of proving truth on the speaker. He stressed that “the conducted. What could be more disheartening than to learn
constitutional protection does not turn upon the truth, that there exists a tape containing conversations that
popularity, or social utility of the ideas and belief compromised the integrity of the election process. The doubt
which are offered.” Moreover, the fact that the tapes were will forever hang over our heads, doubting whether those who
obtained through violation of the Anti-Wiretapping Law does sit in government are legitimate officials. In matters such as
these, leaving the people in darkness is not an alternative III A free press is an indispensable component of a democratic
course. People ought to know the truth. Yes, the airing of and free society.
the Garci Tapesmay have serious impact, but this is not a Burke once called the Press the Fourth Estate in the
valid basis for suppressing it. As Justice Douglas explained in Parliament. This is because its ability to influence public
his concurring opinion in the New York Times, “the opinion made it an important source in the governance of a
dominant purpose of the First Amendment was to nation. It is considered one of the foundations of a democratic
prohibit the widespread practice of governmental society. One sign of its importance is that when a tyrant takes
suppression of embarrassing information. A debate of over a country, his first act is to muzzle the press. Courts
large proportions goes in the nation over our posture should therefore be wary in resolving cases that has
in Vietnam. Open debate and discussion of public implication on the freedom of the press—to the end that
issues are vital to our national health.” the freedom will never be curtailed absent a recognized and
More than ever, now is the time to uphold the right of the valid justification.
Filipinos to information on matters of public concern. As Chief In fine let it be said that the struggle for freedom of
Justice Hughes observed: “The administration of government expression is as ancient as the history of censorship. From the
has become more complex, the opportunities for malfeasance ancient time when Socrates was poisoned for his unorthodox
and corruption have multiplied, crime has grown to most views to the more recent Martial Law Regime in our country,
serious proportions, and the danger of its protection by the lesson learned is that censorship is the biggest obstacle to
unfaithful officials and of the impairment of the fundamental human progress. Let us not repeat our sad history. Let us not
security of life and liberty by criminal alliances and official be victims again now and in the future.
neglect, emphasize the primary need of a vigilant and WHEREFORE, I vote to CONCUR with the majority
courageous press, especially in great cities. The fact that the opinion.
liberty of the press may be abused by miscreant purveyors of SEPARATE CONCURRING OPINION
scandal does not make any less necessary the immunity of the
press from previous restraint in dealing with official CARPIO, J.:
misconduct.” Open discussions of our political leaders, as
19

well as their actions, are essential for us to make informed The Case
judgments. Through these, we can influence our government’s This is a petition for the writs of certiorari and prohibition to
set aside “acts, issuances, and orders” of respondents
_______________ Secretary of Justice Raul M. Gonzalez (respondent Gonzales)
and
Near v. Minnesota,179 Minn. 40; 228 N.W. 326.
19
522
521
522 SUPREME COURT REPORTS ANNOTATED
VOL. 545, FEBRUARY 15, 2008 521
Chavez vs. Gonzales
Chavez vs. Gonzales
the National Telecommunications Commission (NTC),
actions and policies. Indeed, no government can be particularly an NTC “press release” dated 11 June 2005,
responsive to its citizens who have refrained from
warning radio and television stations against airing taped
voicing their discontent because of fear of retribution. conversations allegedly between President Gloria Macapagal-
Arroyo and Commission on Elections (COMELEC) the Garci Tapes for possible violation of Republic Act No. 4200
Commissioner Virgilio Garcillano (Garcillano) under pain of
1 or the Anti-Wiretapping Law.
suspension or revocation of their airwave licenses. On 11 June 2005, the NTC issued a press release warning
The Facts radio and television stations that airing the Garci Tapes is a
On 24 June 2004, Congress, acting as national board of “cause for the suspension, revocation and/or cancellation of
canvassers, proclaimed President Arroyo winner in the 2004 the licenses or authorizations” issued to them. On 14 June 5

presidential elections. President Arroyo received a total of


2

_______________
12,905,808 votes, 1,123,576 more than the votes of her nearest
rival, Fernando Poe, Jr. Sometime before 6 June 2005, the However, respondents do not deny petitioner’s assertion that the 9 June
radio station dzMM aired the Garci Tapes where the parties 2005 press conference also took place.
to the conversation discussed “rigging” the results of the 2004 4 On 7 June 2005, Atty. Alan Paguia, counsel of former President Joseph

Ejercito Estrada, gave to a radio station two tapes, including the Garci Tapes,
elections to favor President Arroyo. On 6 June 2005,
which he claimed to be authentic. On 10 June 2005, Samuel Ong, a high
Presidential spokesperson Ignacio Bunye (Bunye) held a press ranking official of the National Bureau of Investigation, presented to the
conference in Malacañang Palace, where he played before the media the alleged “master tape” of the Garci Tapes.
presidential press corps two compact disc recordings of 5 The press release reads in its entirety:

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS


conversations between a woman and a man. Bunye identified TO OBSERVE ANTI-WIRE TAPPING LAW AND PERTINENT NTC CIRCULARS ON
the woman in both recordings as President Arroyo but claimed PROGRAM STANDARDS
In view of the unusual situation the country is in today, The (sic) National
that the contents of the second compact disc had been Telecommunications Commission (NTC) calls for sobriety among the operators and
“spliced” to make it appear that President Arroyo was talking management of all radio and television stations in the country and reminds them,
to Garcillano. especially all broadcasters, to be careful and circumspect in the handling of news
reportage, coverages [sic] of current affairs and discussion of public issues, by strictly
However, on 9 June 2005, Bunye backtracked and stated adhering to the pertinent laws of the country, the current program standards embodied
that the woman’s voice in the compact discs was not President in radio and television codes and the existing circulars of the NTC.
The NTC said that now, more than ever, the profession of broadcasting demands a
Arroyo’s after all. Meanwhile, other individuals went public,
3
high sense of responsibility and discerning judgment of fairness and honesty at all times
among broadcasters amidst all these rumors of unrest, destabilization attempts and
_______________ controversies surrounding the alleged wiretapping of President GMA (sic) telephone
conversations.
1 The taped conversations are referred to here as the “Garci Tapes.” 524
2 Report of the Joint Committee on the Canvass of Votes for the 524 SUPREME COURT REPORTS ANNOTATED
Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections,
dated 23 June 2004.
Chavez vs. Gonzales
3 In their Comment to the petition, the NTC and respondent Gonzalez only 2005, NTC officers met with officers of the broadcasters
mentioned Bunye’s press conference of 6 June 2005. group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to
523
VOL. 545, FEBRUARY 15, 2008 523 _______________
Chavez vs. Gonzales
Taking into consideration the country’s unusual situation, and in order not to
claiming possession of the genuine copy of the Garci unnecessarily aggravate the same, the NTC warns all radio stations and television
Tapes. Respondent Gonzalez ordered the National Bureau of
4 networks owners/operators that the conditions of the authorizations and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority
Investigation to investigate media organizations which aired explicitly provides that said companies shall not use its stations for the broadcasting or
telecasting of false information or willful misrepresentation. Relative thereto, it has
come to the attention of the Commission that certain personalities are in possession of have always been committed to the exercise of press freedom with
alleged taped conversation which they claim, (sic) involve the President of the high sense of responsibility and discerning judgment of fairness and
Philippines and a Commissioner of the COMELEC regarding their supposed violation honesty.
of election laws. These personalities have admitted that the taped conversations are
3. 3.NTC did not issue any MC [Memorandum Circular] or Order
product of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor
constituting a restraint of press freedom or censorship. The NTC
could it be said at this time that the tapes contain an accurate or truthful representation further denies and does not intend to limit or restrict the interview
of what was recorded therein, (sic) it is the position of the Commission that the of members of the opposition or free expression of views.
continuous airing or broadcast of the said taped conversations by radio and television 4. 4.What is being asked by NTC is that the exercise of press freedom is
stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the done responsibly.
Provisional Authority and/or Certificate of Authority issued to these radio and 5. 5.KBP has program standards that KBP members will observe in the
television stations. If it has been (sic) subsequently established that the said tapes are treatment of news and public affairs programs. These include
false and/or fraudulent after a prosecution or appropriate investigation, the concerned verification of sources, non-airing of materials that would constitute
radio and television companies are hereby warned that their broadcast/airing of such
inciting to sedition and/or rebellion.
false information and/or willful misrepresentation shall be just cause for the
suspension, revocation and/or cancellation of the licenses or authorizations issued to
the said companies. 526
In addition to the above, the Commission reiterates the pertinent NTC circulars on 526 SUPREME COURT REPORTS ANNOTATED
program standards to be observed by radio and television stations. NTC Memorandum
Circular No. 111-12-85 explicitly states, among others, that “all radio broadcasting and Chavez vs. Gonzales
television stations shall, during any broadcast or telecast, cut off from the air the speech
play, act or scene
On 21 June 2005, petitioner Francisco I. Chavez (petitioner),
525 as citizen, filed this petition to nullify the “acts, issuances, and
VOL. 545, FEBRUARY 15, 2008 525 orders” of the NTC and respondent Gonzalez (respondents) on
Chavez vs. Gonzales the following grounds: (1) respondents’ conduct violated
dispel fears of censorship. The NTC and KBP issued a joint freedom of expression and the right of the people to
press statement expressing commitment to press freedom. 6
information on matters of public concern under Section 7,
Article III of the Constitution, and (2) the NTC acted ultra
_______________ vires when it warned radio and television stations against
airing the Garci Tapes.
or other matters being broadcast and/or telecast if the tendency thereof” is to
disseminate false information or such other willful misrepresentation, or to propose In their Comment to the petition, respondents raised
and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated threshold objections that (1) petitioner has no standing to
in NTC Memorandum Circular No. 22-89 which, in addition thereto, prohibited radio,
broadcasting and television stations from using their stations to broadcast or telecast
litigate and (2) the petition fails to meet the case or
any speech, language or scene disseminating false information or willful controversy requirement in constitutional adjudication. On
misrepresentation, or inciting, encouraging or assisting in subversive or treasonable the merits, respondents claim that (1) the NTC’s press release
acts.
The Commission will not hesitate, after observing the requirements of due process, of 11 June 2005 is a mere “fair warning,” not censorship,
to apply with full force the provisions of the said Circulars and their accompanying cautioning radio and television networks on the lack of
sanctions or erring radio and television stations and their owners/operators.
6 The joint press statement reads (Rollo, pp. 62-63):
authentication of the Garci Tapes and of the consequences of
airing false or fraudulent material, and (2) the NTC did not
JOINT PRESS STATEMENT: THE NTC AND KBP act ultra vires in issuing the warning to radio and television
stations.
1. 1.Call for sobriety, responsible journalism, and of law, and the radio In his Reply, petitioner belied respondents’ claim on his
and television Codes.
2. 2.NTC respects and will not hinder freedom of the press and the right
lack of standing to litigate, contending that his status as a
to information on matters of public concern. KBP & its members citizen asserting the enforcement of a public right vested him
with sufficient interest to maintain this suit. Petitioner also Freedom of expression, being fundamental to the
contests respondents’ claim that the NTC press release of 11 preservation of a free, open and democratic society, is
June 2005 is a mere warning as it already prejudged the Garci of transcendental importancethat must be defended by every
Tapes as inauthentic and violative of the AntiWiretapping patriotic citizen at the earliest opportunity. We have held that
Law, making it a “cleverly disguised x x x gag order.” any concerned citizen has standing to raise an issue
of transcendental importance to the nation, and petitioner in
7

_______________
this present petition raises such issue.
1. 6.The KBP Codes also require that no false statement or willful _______________
misrepresentation is made in the treatment of news or
commentaries. 7 David v. Macapagal-Arroyo, G.R. No. 1713396, 3 May 2006, 489 SCRA

2. 7.The supposed wiretapped tapes should be treated with sensitivity 160.


and handled responsibly giving due consideration to the process 528
being undertaken to verify and validate the authenticity and actual
content of the same.
528 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales
527 2. Overview of Freedom of Expression, Prior Restraint and
VOL. 545, FEBRUARY 15, 2008 527 Subsequent Punishment
Chavez vs. Gonzales Freedom of expression is the foundation of a free, open and
Issue democratic society. Freedom of expression is an indispensable
The principal issue for resolution is whether the NTC warning condition to the exercise of almost all other civil and political
8

embodied in the press release of 11 June 2005 constitutes an rights. No society can remain free, open and democratic
impermissible prior restraint on freedom of expression. without freedom of expression. Freedom of expression
I vote to (1) grant the petition, (2) declare the NTC guarantees full, spirited, and even contentious discussion of
warning, embodied in its press release dated 11 June 2005, an all social, economic and political issues. To survive, a free and
unconstitutional prior restraint on protected expression, and democratic society must zealously safeguard freedom of
(3) enjoin the NTC from enforcing the same. expression.
1. Standing to File Petition Freedom of expression allows citizens to expose and check
Petitioner has standing to file this petition. When the issue abuses of public officials. Freedom of expression allows
involves freedom of expression, as in the present case, any citizens to make informed choices of candidates for public
citizen has the right to bring suit to question the office. Freedom of expression crystallizes important public
constitutionality of a government action in violation of policy issues, and allows citizens to participate in the
freedom of expression, whether or not the government action discussion and resolution of such issues. Freedom of
is directed at such citizen. The government action may chill expression allows the competition of ideas, the clash of claims
into silence those to whom the action is directed. Any citizen and counterclaims, from which the truth will likely emerge.
must be allowed to take up the cudgels for those who have Freedom of expression allows the airing of social grievances,
been cowed into inaction because freedom of expression is a mitigating sudden eruptions of violence from marginalized
vital public right that must be defended by everyone and groups who otherwise would not be heard by government.
anyone. Freedom of expression provides a civilized way of engagement
among political, ideological, religious or ethnic opponents for The exceptions, when expression may be subject
if one cannot use his tongue to argue, he might use his fist to prior restraint, apply in this jurisdiction to only four
instead. categories of expression, namely: pornography, false or
11

Freedom of expression is the freedom to disseminate ideas misleading advertisement, 12 advocacy of imminent lawless
and beliefs, whether competing, conforming or otherwise. It is action, 13

the freedom to express to others what one likes or dislikes, as


_______________
it is the freedom of others to express to one and all what they
favor or disfavor. It is the free expression for the ideas we love, 10 Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
as well as the free expression for the ideas we hate. 9 11 Gonzales v. Kalaw-Katigbak, No. L-69500, 22 July 1985, 137 SCRA 717.
12 Pharmaceutical and Health Care Association of the Philippines v. Health

_______________ Secretary Francisco T. Duque III, G.R. No. 173034, 9 October 2007. Another
fundamental ground for regulating false or misleading advertisement is
8 In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Benjamin Cardozo Section 11(2), Article XVI of the Constitution which states: “The advertising
wrote that freedom of expression is “the matrix, the indispensable condition, industry is impressed with public interest, and shall be regulated by law for
of nearly every other form of freedom.” the protection of consumers and the promotion of the general welfare.”
9 See dissenting opinion of Justice Oliver Wendell Holmes in United States 13 Eastern Broadcasting Corporation v. Dans, No. L-59329, 19 July
v. Schwimmer, 279 U.S. 644 (1929). 1985, 137 SCRA 628.
529 530
VOL. 545, FEBRUARY 15, 2008 529 530 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales Chavez vs. Gonzales
Indeed, the function of freedom of expression is to stir and danger to national security. All other expression is
14

disputes: not subject to prior restraint. As stated in Turner


“[I]t may indeed best serve its high purpose when it induces a Broadcasting System v. Federal Communication Commission,
condition of unrest, creates dissatisfaction with conditions as they “[T]he First Amendment (Free Speech Clause), subject only to
are, or even stirs people to anger. Speech is often provocative and narrow and well understood exceptions, does not countenance
challenging. It may strike at prejudices and preconceptions and governmental control over the content of messages expressed
have profound unsettling effects as it presses for acceptance of an by private individuals.” 15

idea.”
Expression not subject to prior restraint is protected
10

Section 4, Article III of the Constitution prohibits the


expressionor high-value expression. Any content-based
enactment of any law curtailing freedom of expression:
prior restraint on protected expression is
“No law shall be passed abridging the freedom of speech, of
expression, or the press, or the right of the people peaceably to
unconstitutional without exception. A protected
assemble and petition the government for redress of grievances.” expression means what it says—it is absolutely protected
Thus, the rule is that expression is not subject to from censorship. Thus, there can be no prior restraint on
any prior restraint or censorship because the Constitution public debates on the amendment or repeal of existing laws,
commands that freedom of expression shall not be abridged. on the ratification of treaties, on the imposition of new tax
Over time, however, courts have carved out narrow and well measures, or on proposed amendments to the Constitution.
defined exceptions to this rule out of necessity. Prior restraint on expression is content-based if the
restraint is aimed at the message or idea of the expression.
Courts will subject to strict scrutiny content-based restraint.
If the content-based prior restraint is directed at protected for censoring any part of the content of the submitted
expression, courts will strike down the restraint as materials. However, failure to submit such materials to the
20

unconstitutional because there can be no content-based prior review board may be penalized without regard to the content
restraint on protected expression. The analysis thus turns on of the materials. The review board has no power to reject the
21

whether the prior restraint is content-based, and if so, airing of the submitted materials. The review board’s power
whether such restraint is directed at protected expression, is only to classify the materials, whether for general
that is, those not falling under any of the recognized patronage, for
categories of unprotected expression.
_______________
If the prior restraint is not aimed at the message or idea of
the expression, it is content-neutral even if it burdens 16 Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.
expression. A content-neutral restraint is a restraint which Ermita, G.R. Nos. 169838, 169848 and 156881, 25 April 2006, 488 SCRA 226.
regulates the time, place or manner of the expression in public 17 Constitutional Law, Erwin Chemerinsky, pp. 902, 936 (2nd Edition).

18 Ruiz v. Gordon, 211 Phil. 411; 126 SCRA 233 (1983).

19 United States v. Grace, 461 U.S. 171 (1983).


_______________
20 Gonzalez v. Kalaw-Katigbak, see Note 11. The Court declared, “It is the

Id.
14
opinion of this Court, therefore, that to avoid an unconstitutional taint on its
512 U.S. 622, 640 (1994).
15
creation, the power of respondent Board is limited to the classification
531 of films.”
21 Movie and Television Review and Classification Board v. ABS-CBN
VOL. 545, FEBRUARY 15, 2008 531 Broadcasting Corporation, G.R. No. 155282, 17 January 2005, 448 SCRA 575.
Chavez vs. Gonzales 532
places without any restraint on the content of the expression.
16 532 SUPREME COURT REPORTS ANNOTATED
Courts will subject content-neutral restraints to intermediate Chavez vs. Gonzales
scrutiny. 17
adults only, or for some other classification. The power to
An example of a content-neutral restraint is a permit classify expressions applies only to movies and pre-taped
specifying the date, time and route of a rally passing through television programs but not to live television programs. Any
22

busy public streets. A content-neutral prior restraint on classification of live television programs necessarily entails
protected expression which does not touch on the content of prior restraint on expression.
the expression enjoys the presumption of validity and is thus Expression that may be subject to prior restraint
enforceable subject to appeal to the courts. Courts will
18
is unprotected expression or low-value expression. By
uphold time, place or manner restraints if they are content- definition, prior restraint on unprotected expression is
neutral, narrowly tailored to serve a significant government content-based since the restraint is imposed because of the
23

interest, and leave open ample alternative channels of content itself. In this jurisdiction, there are currently only
expression. 19
four categories of unprotected expression that may be subject
In content-neutral prior restraint on protected speech, to prior restraint. This Court recognized false or misleading
there should be no prior restraint on the content of the advertisement as unprotected expression only in October
expression itself. Thus, submission of movies or pre-taped 2007. 24

television programs to a government review board is Only unprotected expression may be subject to
constitutional only if the review is for classification and not prior restraint.However, any such prior restraint on
unprotected expression must hurdle a high barrier. First, justify prior restraint on religious expression, this provision
such prior restraint is presumed unconstitutional. Second, can be invoked to justify subsequent punishment of the
the government bears a heavy burden of proving the perpetrator of such offensive shows. 29

constitutionality of the prior restraint. 25 Similarly, if the unprotected expression does not warrant
Courts will subject to strict scrutiny any government action prior restraint, the same expression may still be subject to
imposing prior restraint on unprotected expression. The 26 subsequent punishment, civilly or criminally. Libel falls
government action will be sustained if there is a compelling under this class of unprotected expression. However, if the
State interest, and prior restraint is necessary to protect such expression cannot be subject to the lesser restriction of
State interest. In such a case, the prior restraint shall be subsequent punishment, logically it cannot also be subject to
the more severe restriction of prior restraint. Thus, since
_______________
profane language or “hate speech” against a religious minority
22 A case may be made that only television programs akin to motion is not subject to subsequent punishment in this
pictures, like tele-novelas, are subject to the power of review and classification jurisdiction, such expression cannot be subject to prior
30

by a government review board, and such power cannot extend to other pre- restraint.
taped programs like political shows.
23 Constitutional Law, Chemerinsky, see Note 17, p. 903.
_______________
24 See Note 12.

25 Iglesia ni Cristo (INC) v. Court of Appeals, Board of Review for Motion


27 Ayer Productions Pty. Ltd. v. Capulong, G.R. No. L-82380, 29 April

Pictures and Television, G.R. No. 119673, 26 July 1996, 259 SCRA 529; New 1988, 160 SCRA 861.
York Times v. United States, 403 U.S. 713 (1971). 28 Social Weather Station, et al. v. Commission on Elections,409 Phil.
26 Id.
571; 357 SCRA 496 (2001).
533 29 See Note 25.

VOL. 545, FEBRUARY 15, 2008 533 30 MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines,

Chavez vs. Gonzales Inc., 444 Phil. 230; 396 SCRA 210 (2003). In effect, this
534
narrowly drawn—only to the extent necessary to protect or
534 SUPREME COURT REPORTS ANNOTATED
attain the compelling State interest.
Chavez vs. Gonzales
Prior restraint is a more severe restriction on freedom of
expression than subsequent punishment. Although If the unprotected expression warrants prior restraint,
subsequent punishment also deters expression, still the ideas necessarily the same expression is subject to subsequent
are disseminated to the public. Prior restraint prevents even punishment. There must be a law punishing criminally the
the dissemination of ideas to the public. unprotected expression before prior restraint on such
While there can be no prior restraint on protected expression can be justified. The legislature must punish the
expression, such expression may be subject to subsequent unprotected expression because it creates a substantive evil
punishment, either civilly or criminally. Thus, the
27
that the State must prevent. Otherwise, there will be no legal
publication of election surveys cannot be subject to prior basis for imposing a prior restraint on such expression.
restraint, but an aggrieved person can sue for redress of
28
The prevailing test in this jurisdiction to determine the
injury if the survey turns out to be fabricated. Also, while constitutionality of government action imposing prior
Article 201 (2)(b)(3) of the Revised Penal Code punishing restraint on three categories of unprotected expression—
“shows which offend any race or religion” cannot be used to pornography, advocacy of imminent lawless action, and
31
danger to national security—is the clear and present danger the suspension, revocation and/or cancellation of the
test. The expression restrained must present a clear and
32 licenses or authorizations” issued to radio and television
present danger of bringing about a substantive evil that the stations. The NTC warning, embodied in a press release,
State has a right and duty to prevent, and such danger must relies on two grounds. First, the airing of the Garci Tapes “is
be grave and imminent. 33 a continuing violation of the Anti-Wiretapping Law and the
conditions of the Provisional Authority and/or Certificate of
_______________
Authority issued to radio and TV stations.” Second, the Garci
makes “hate speech” against a religious or ethnic minority a protected Tapes have not been authenticated, and subsequent
expression. investigation may establish that the tapes contain false
31 In pornography or obscenity cases, the ancillary test is the contemporary
information or willful misrepresentation.
community standards test enunciated in Roth v. United States (354 U.S.
Specifically, the NTC press release contains the following
476 [1957]), which asks: whether to the average person, applying
contemporary community standards, the dominant theme of the material categorical warning:
taken as a whole appeals to prurient interest. See Gonzalez v. Kalaw- “Taking into consideration the country’s unusual situation, and in
Katigbak, Note 11. order not to unnecessarily aggravate the same, the NTC warns all
32 See notes 12 and 13. In false or misleading advertisement cases, no test
radio stations and television networks owners/operators that the
was enunciated in Pharmaceutical and Health Care Association of the
Philippines v. Health Secretary (see Note 12) although the Concurring and _______________
Separate Opinion of Chief Justice Reynato S. Puno advocated the four-part
analysis in Central Hudson Gas & Electric v. Public Service Commission (447 U.S. 444 1969]) which refined the clear and present danger rule articulated
U.S. 557 [1980]), to wit: (1) the advertisement must concern lawful activity by Justice Oliver Wendell Holmes in Schenck v. United States (249 U.S.
and not be misleading; (2) the asserted governmental interest must be 47 [1919]) by limiting its application to expressions where there is “imminent
substantial; (3) the state regulation directly advances the governmental lawless action.” See American Constitutional Law, Otis H. Stephen, Jr. and
interest asserted; and (4) the restriction is no more extensive than is necessary John M. Scheb II, Vol. II, p. 133 (4th Edition).
to serve that interest. 34 Federal Communications Commission v. League of Women Voters, 468

33 Bayan v. Ermita, see Note 16. In the United States, the prevailing test is
U.S. 364(1984).
the Brandenburg standard (Brandenburg v. Ohio, [395 536
535
536 SUPREME COURT REPORTS ANNOTATED
VOL. 545, FEBRUARY 15, 2008 535
Chavez vs. Gonzales
Chavez vs. Gonzales
conditions of the authorizations and permits issued to them by
Prior restraint on unprotected expression takes many forms— Government like the Provisional Authority and/or Certificate of
it may be a law, administrative regulation, or impermissible Authority explicitly provides that said companies shall not use its
pressures like threats of revoking licenses or withholding of stations for the broadcasting or telecasting of false information or
benefits. The impermissible pressures need not be embodied
34
willful misrepresentation. Relative thereto, it has come to the
in a government agency regulation, but may emanate from attention of the Commission that certain personalities are in
policies, advisories or conduct of officials of government possession of alleged taped conversation which they claim, (sic)
agencies. involve the President of the Philippines and a Commissioner of the
3. Government Action in the Present Case COMELEC regarding their supposed violation of election laws.
The government action in the present case is a warning These personalities have admitted that the taped conversations are
product of illegal wiretapping operations.
by the NTC that the airing or broadcasting of the Garci
Tapes by radio and television stations is a “cause for
Considering that these taped conversations have not been duly It was even the Office of the President, through the Press
authenticated nor could it be said at this time that the tapes contain Secretary, that played and released to media the Garci Tapes
an accurate or truthful representation of what was recorded containing the alleged “spliced” conversation between
therein, (sic) it is the position of the Commission that the President Arroyo and Commissioner Garcillano. There is also
continuous airing or broadcast of the said taped
the issue of whether a wireless cellular phone conversation is
conversations by radio and television stations is a
covered by the Anti-Wiretapping Law.
continuing violation of the AntiWiretapping Law and the
conditions of the Provisional Authority and/or Certificate of Clearly, the NTC has no factual or legal basis in claiming
Authority issued to these radio and television stations. If it that the airing of the Garci Tapes constitutes a violation of the
has been (sic) subsequently established that the said tapes Anti-Wiretapping Law. The radio and television stations were
are false and/or fraudulent after a prosecution or not even given an opportunity to be heard by the NTC. The
appropriate investigation, the concerned radio and NTC did not observe basic due process as mandated in Ang
television companies are hereby warned that Tibay v. Court of Industrial Relations. 36

their broadcast/airing of such false information and/or The NTC claims that the Garci Tapes, “after a prosecution
willful misrepresentation shall be just cause for the or the appropriate investigation,” may constitute “false
suspension, revocation and/or cancellation of the licenses or information and/or willful misrepresentation.” However, the
authorizations issued to the said companies.” (Boldfacing and
NTC does not claim that such possible false information or
underscoring supplied)
willful misrepresentation constitutes misleading commercial
The NTC does not claim that the public airing of the Garci
advertisement. In the United States, false or deceptive
Tapes constitutes unprotected expression that may be subject
commercial speech is categorized as unprotected expression
to prior restraint. The NTC does not specify what substantive
that may be subject to prior restraint. Recently, this Court
evil the State seeks to prevent in imposing prior restraint on
upheld the constitutionality of Section 6 of the Milk Code
the airing of the Garci Tapes. The NTC does not claim that
requiring the submission to a government screening
the public airing of the Garci Tapes constitutes a clear and
committee of advertising materials for infant formula milk to
present danger of a substantive evil, of grave and imminent
prevent false or deceptive claims to the public. There is,
37

character, that the State has a right and duty to prevent.


however, no claim here by respondents that the Garci Tapes
The NTC did not conduct any hearing in reaching its
constitute false or misleading commercial advertisement.
conclusion that the airing of the Garci Tapes constitutes a
The NTC concedes that the Garci Tapes have not been
continuing violation of the Anti-Wiretapping Law. At the time
authenticated as accurate or truthful. The NTC also concedes
of
537 _______________
VOL. 545, FEBRUARY 15, 2008 537
Chavez vs. Gonzales 35 Section 1, Republic Act No. 4200.
69 Phil. 635 (1940).
issuance of the NTC press release, and even up to now, the
36

37 See Note 12.

parties to the conversations in the Garci Tapes have not 538


complained that the wire-tapping was without their consent, 538 SUPREME COURT REPORTS ANNOTATED
an essential element for violation of the Anti-Wiretapping Chavez vs. Gonzales
Law. 35
that only “after a prosecution or appropriate investigation” Chavez vs. Gonzales
can it be established that the Garci Tapes constitute “false subject of fair and honest elections would be at the top. In any
information and/or willful misrepresentation.” Clearly, event, public discussion on all political issues should always
the NTC admits that it does not even know if the remain uninhibited, robust and wide open.
Garci Tapes contain false information or willful The rule, which recognizes no exception, is that
misrepresentation. there can be no content-based prior restraint on
4. Nature of Prior Restraint in the Present Case protected expression. On this ground alone, the NTC
The NTC action restraining the airing of the Garci Tapes is a press release is unconstitutional. Of course, if the courts
content-based prior restraint because it is directed at the determine that the subject matter of a wiretapping, illegal or
message of the Garci Tapes. The NTC’s claim that the Garci not, endangers the security of the State, the public airing of
Tapes might contain “false information and/or willful the tape becomes unprotected expression that may be subject
misrepresentation,” and thus should not be publicly aired, is to prior restraint. However, there is no claim here by
an admission that the restraint is content-based. respondents that the subject matter of the Garci Tapes
5. Nature of Expression in the Present Case involves national security and publicly airing the tapes would
The public airing of the Garci Tapes is a protected endanger the security of the State. 39

expressionbecause it does not fall under any of the four The alleged violation of the Anti-Wiretapping Law is not in
existing categories of unprotected expression recognized in itself a ground to impose a prior restraint on the airing of the
this jurisdiction. The airing of the Garci Tapes is essentially a Garci Tapes because the Constitution expressly prohibits the
political expression because it exposes that a presidential enactment of any law, and that includes anti-wiretapping
candidate had allegedly improper conversations with a laws, curtailing freedom of expression. The only exceptions to
40

COMELEC Commissioner right after the close of voting in the this rule are the four recognized categories of unprotected
last presidential elections. expression. However, the content of the Garci Tapes does not
Obviously, the content of the Garci Tapes affects gravely fall under any of these categories of unprotected expression.
the sanctity of the ballot. Public discussion on the sanctity The airing of the Garci Tapes does not violate the right to
of the ballot is indisputably a protected expression that cannot privacy because the content of the Garci Tapes is a matter of
be subject to prior restraint. Public discussion on the important public concern. The Constitution guarantees the
credibility of the electoral process is one of the highest people’s right to information on matters of public
political expressions of any electorate, and thus deserves the concern. The remedy of any person aggrieved by the public
41

utmost protection. If ever there is a hierarchy of protected airing of


expressions, political expression would occupy the highest
rank, and among different kinds of political expression, the
38
_______________

_______________ Speech Clause. The U.S. Supreme Court has rejected this
view. Constitutional Law, Chemerinsky, see Note 17, p. 897.
39 See Commonwealth Act No. 616 and Article 117 of the Revised Penal
38 Some commentators, including Prof. Robert Bork, argue that political

Code.
expression is the only expression protected by the Free
40 See Bartnicki v. Vopper, 532 U.S. 514 (2001). In this case, the U.S.
539
Supreme Court held that an anti-wiretapping law violates the First
VOL. 545, FEBRUARY 15, 2008 539
Amendment if it prohibits disclosure of intercepted information that is of any prior restraint on unprotected expression. Unless ruled
significant public concern.
41 Section 7, Article III, Constitution.
by the courts as a valid prior restraint, government agencies
540 cannot imple-
540 SUPREME COURT REPORTS ANNOTATED 541
VOL. 545, FEBRUARY 15, 2008 541
Chavez vs. Gonzales
Chavez vs. Gonzales
the Garci Tapes is to file a complaint for violation of the
AntiWiretapping Law after the commission of the crime. ment outright such prior restraint because such restraint is
Subsequent punishment, absent a lawful defense, is the presumed unconstitutional at inception.
remedy available in case of violation of the Anti-Wiretapping As an agency that allocates frequencies or airwaves, the
Law. NTC may regulate the bandwidth position, transmitter
The present case involves a prior restraint on protected wattage, and location of radio and television stations, but not
expression. Prior restraint on protected expression differs the content of the broadcasts. Such content-neutral prior
significantly from subsequent punishment of protected restraint may make operating radio and television stations
expression. While there can be no prior restraint on protected more costly. However, such content-neutral restraint does not
expression, there can be subsequent punishment for protected restrict the content of the broadcast.
expression under libel, tort or other laws. In the present case, 7. Government Failed to Overcome Presumption of Invalidity
the NTC action seeks prior restraint on the airing of the Garci Assuming that the airing of the Garci Tapes constitutes
Tapes, not punishment of personnel of radio and television unprotected expression, the NTC action imposing prior
stations for actual violation of the Anti-Wiretapping Law. restraint on the airing is presumed unconstitutional. The
6. Only the Courts May Impose Content-Based Prior Restraint Government bears a heavy burden to prove that the NTC
The NTC has no power to impose content-based prior action is constitutional. The Government has failed to meet
restraint on expression. The charter of the NTC does not vest this burden.
NTC with any content-based censorship power over radio and In their Comment, respondents did not invoke any
television stations. compelling State interest to impose prior restraint on the
In the present case, the airing of the Garci Tapes is a public airing of the Garci Tapes. The respondents claim that
protected expression that can never be subject to prior they merely “fairly warned” radio and television stations to
restraint. However, even assuming for the sake of argument observe the Anti-Wiretapping Law and pertinent NTC
that the airing of the Garci Tapes constitutes unprotected circulars on program standards. Respondents have not
expression, only the courts have the power to adjudicate on explained how and why the observance by radio and television
the factual and legal issue of whether the airing of the Garci stations of the Anti-Wiretapping Law and pertinent NTC
Tapes presents a clear and present danger of bringing about circulars constitutes a compelling State interest justifying
a substantive evil that the State has a right and duty to prior restraint on the public airing of the Garci Tapes.
prevent, so as to justify the prior restraint. Violation of the Anti-Wiretapping Law, like the violation of
Any order imposing prior restraint on unprotected any criminal statute, can always be subject to criminal
expressionrequires prior adjudication by the courts on prosecution afterthe violation is committed. Respondents
whether the prior restraint is constitutional. This is a have not explained why there is a need in the present case to
necessary consequence from the presumption of invalidity of impose prior restraint just to prevent a possible future
violation of the Anti-Wiretapping Law. Respondents have not President Arroyo on 24 February 2006. The Court described
explained how the violation of the Anti-Wiretapping Law, or these threats in this manner:
of the pertinent NTC circulars, can incite imminent lawless
_______________
behavior or endanger the security of the State. To allow such
restraint is 218 Phil. 754; 133 SCRA 800 (1984).
42

542 See Note 7.


43

542 SUPREME COURT REPORTS ANNOTATED 543


Chavez vs. Gonzales VOL. 545, FEBRUARY 15, 2008 543
to allow prior restraint on all future broadcasts that may Chavez vs. Gonzales
possibly violate any of the existing criminal statutes. That “Thereafter, a wave of warning[s] came from government
would be the dawn of sweeping and endless censorship on officials.Presidential Chief of Staff Michael Defensor was quoted
broadcast media. as saying that such raid was “meant to show a ‘strong presence,’ to
8. The NTC Warning is a Classic Form of Prior Restraint tell media outlets not to connive or do anything that would help the
The NTC press release threatening to suspend or cancel the rebels in bringing down this government.” Director General
Lomibao further stated that “if they do not follow the standards—
airwave permits of radio and television stations constitutes
and the standards are if they would contribute to instability in the
impermissible pressure amounting to prior restraint on government, or if they do not subscribe to what is in General Order
protected expression. Whether the threat is made in an order, No. 5 and Proc. No. 1017—we will recommend a
regulation, advisory or press release, the chilling effect is the ‘takeover.’” National Telecommunications Commissioner
same: the threat freezes radio and television stations into Ronald Solis urged television and radio networks to
deafening silence. Radio and television stations that have “cooperate” with the government for the duration of the
invested substantial sums in capital equipment and market state of national emergency. He warned that his agency will
development suddenly face suspension or cancellation of their not hesitate to recommend the closure of any broadcast
permits. The NTC threat is thus real and potent. outfit that violates rules set out for media coverage during
In Burgos v. Chief of Staff, this Court ruled that the
42
times when the national security is threatened.” (Emphasis
44

closure of the We Forum newspapers under a general warrant supplied)


“is in the nature of a previous restraint or censorship The Court struck down this “wave of warning[s]” as
abhorrent to the freedom of the press guaranteed under the impermissible restraint on freedom of expression. The Court
fundamental law.” The NTC warning to radio and television ruled that “the imposition of standards on media or any form
stations not to air the Garci Tapes or else their permits will of prior restraint on the press, as well as the warrantless
be suspended or cancelled has the same effect—a prior search of the Tribune offices and whimsical seizure of its
restraint on constitutionally protected expression. articles for publication and other materials, are declared
In the recent case of David v. Macapagal-Arroyo, this 43
UNCONSTITUTIONAL.” 45

Court declared unconstitutional government threats to close The history of press freedom has been a constant struggle
down mass media establishments that refused to comply with against the censor whose weapon is the suspension or
government prescribed “standards” on news reporting cancellation of licenses to publish or broadcast. The NTC
following the declaration of a State of National Emergency by warning resurrects the weapon of the censor. The NTC
warning is a classic form of prior restraint on protected
expression, which in the words of Near v. Minnesota is “the I vote to GRANT the petition on the ground that the
essence of censorship.” Long before the American
46 challenged NTC and DOJ warnings violate Sec. 10, Art. XVI
Declaration of Independence in 1776, William Blackstone had of the Constitution which states:
already written in his Commentaries on the Law of England, “Sec. 10. The State shall provide the policy environment for the full
“The liberty of the development of Filipino capability and the emergency of
communication structures suitable to the needs and aspirations of
_______________ the nation and the balanced flow of information into, out of, and
across the country, in accordance with a policy that respects the
44 Id., at p. 268. freedom of speech and of the press.”
45 Id., at p. 275.
46 283 U.S. 697 (1931).
_______________
544
544 SUPREME COURT REPORTS ANNOTATED 47 American Constitutional Law, Ralph A. Rossum and G. Alan Tass, vol.

Chavez vs. Gonzales II, p. 183 (7th Edition).


545
press x x x consists in laying no previous restraints upon
VOL. 545, FEBRUARY 15, 2008 545
publication x x x.” 47

Although couched in a press release and not in an Chavez vs. Gonzales


administrative regulation, the NTC threat to suspend or This provision was precisely crafted to meet the needs and
cancel permits remains real and effective, for without opportunities of the emerging new pathways of
airwaves or frequencies, radio and television stations will fall communications, from radio and tv broadcast to the flow of
silent and die. The NTC press release does not seek to advance digital information viacables, satellites and the internet.
a legitimate regulatory objective, but to suppress through The purpose of this new statement of directed State policy
coercion information on a matter of vital public concern. is to hold the State responsible for a policy environment that
9. Conclusion provides for (1) the full development of Filipino capability, (2)
In sum, the NTC press release constitutes an unconstitutional the emergence of communication structures suitable to the
prior restraint on protected expression. There can be no needs and aspirations of the nation and the balanced flow of
content-based prior restraint on protected expression. This information, and (3) respect for the freedom of speech and of
rule has no exception. the press.
I therefore vote to (1) grant the petition, (2) declare the The regulatory warnings involved in this case work against
NTC warning, embodied in its press release dated 11 June a balanced flow of information in our communication
2005, an unconstitutional prior restraint on protected structures and do so without respecting freedom of speech by
expression, and (3) enjoin the NTC from enforcing the same. casting a chilling effect on the media. This is definitely not the
SEPARATE CONCURRING OPINION policy environment contemplated by the Constitution.
SEPARATE OPINION
AZCUNA, J.: (DISSENTING AND CONCURRING)

TINGA, J.:
This case, involving as it does the perennial clash between National Bureau of Investigation (NBI) “to go after media
fundamental individual freedoms and state power, confronts organizations found to have caused the spread, the playing
the Court with a delicate and difficult balancing task. and the printing of the contents” of the said tape.
With all due respect with a little more forbearance, the Then, a Press Release was issued by respondent NTC,
petition could have been conduced to a denouement of essentially warning broadcast stations, “[i]f it has been
congruity but without diminishing the level of scrutiny that subsequently established that the said tapes are false and/or
the crucial stakes demand. I trust though that future fraudulent after a prosecution or appropriate
iterations of this Court, more divorced from some irrational investigation…[,] that their broadcast/airing of such false
aspects of the passions of these times, will further refine the information and/or willful misrepresentation shall be just
important doctrines laid down today. cause for the suspension, revocation and/or cancellation of the
Several considerations guide my vote to grant the licenses or authorizations issued to the said
petition—to issue the quested writ against the companies.” These essentially are the antecedent facts raised
2

respondent Department of Justice Secretary Raul M. in the petition.


Gonzalez (DOJ Secretary), but not as to respondent
_______________
National Telecommunications Commission (NTC).
546
1Rollo, p. 8.
546 SUPREME COURT REPORTS ANNOTATED 2Id., at pp. 10-11.
Chavez vs. Gonzales 547
I. VOL. 545, FEBRUARY 15, 2008 547
I begin with some observations on the petition itself filed by Chavez vs. Gonzales
former Solicitor General Francisco Chavez, brought forth in Petitioner presents two general arguments for our
his capacity “as a citizen, taxpayer and a law practitioner” determination: that respondents violated the constitutional
against the DOJ Secretary and the NTC. At a crucial point provisions on the freedom of expression and of the press, and
3

during the deliberations on this case, much of the focus within of the right of the people to information on matters of public
the Court was on the aspect of the case concerning the NTC, concern; and that the NTC acted beyond its powers as a
4

to the exclusion of the aspect concerning the DOJ Secretary. regulatory body when it warned broadcast stations of
However, the petition itself only minimally dwells on the consequences if they continued to air the contents of the
powers of the National Telecommunications Commission disputed tapes. 5

(NTC). Fifteen (15) pages are assigned to the first issue, while four
The petition was filed on 21 June 2005, less than a month (4) pages are allotted to the second issue concerning the NTC.
after the so-called Hello Garci tapes (Garci tapes) hit the In the context of arguing that there had been prior restraint,
newstands. The petition narrates that a few days after reports petitioner manifests that “the threat of crackdown on media
on the Garci tapes became public, respondent DOJ Secretary and the public were calculated to sow fear and terror in
“threatened that everyone found to be in possession of the advance of actual publication and dissemination of the
controversial audio tape, as well as those broadcasting it or contents of the controversial tapes.” Because of such “fear and
6

printing its contents, were liable for violation of the terror,” the public was denied free access to information as
AntiWiretapping Law,” and subsequently he ordered the
1
guaranteed by the Constitution. 7
Only four (4) pages are devoted to whether the NTC 1. “2.NTC respects and will not hinder freedom of the
exceeded its discretion when it issued the Press Release. press and the right to information on matters of public
About two (2) of the four (4) pages are utilized to cite the concern. KBP & its members have always been
statutory provisions delineating the powers and functions of committed to the exercise of press freedom with high
the NTC. The citations are geared toward the claim that “NTC sense of responsibility and discerning judgment of
is independent in so far as its regulatory and quasi-judicial fairness and honesty.
functions are concerned.” Then the petition argues that
8 2. 3.NTC did not issue any Memorandum Circular or
nothing in the functions of the NTC “warrants the pre- Order constituting a restraint of press freedom or
emptive action it took on June 11, 2005 of declaring in a Press censorship. The NTC further denies and does not
Release that airing of the contents of the controversial tape intend to limit or restrict the interview of members of
already constituted a the opposition or free expression of views.
3. 4.What is being asked by NTC is that the exercise of
_______________
press freedom be done responsibly.” 11

3 CONST., Art. III, Sec. 4.


4 CONST., Art. III, Sec. 7. The Decision however has properly refused to II.
dwell on the right to information as central to the case at bar. See Decision, p. Based on the petition, the determinative questions appear to
9. be: (1) whether the DOJ Secretary may be enjoined from
5 Rollo, p. 18.

6 Id., at p. 23.
prosecuting or threatening to prosecute any person for
7 Id., at p. 24. possessing or broadcasting the contents of the Garci tapes, an
8 Rollo, p. 34.
act which allegedly violates the free expression clause if not
548
also the right to information clause; and (2) whether the NTC
548 SUPREME COURT REPORTS ANNOTATED may be enjoined from sanctioning or threatening to sanction
Chavez vs. Gonzales any
violation of the Anti-Wire Tapping Law.” The petition also
9

states that “[w]orse, the judgment of NTC was outright, _______________


without a hearing to determine the alleged commission of a 9 Id., at p. 34.
crime and violation of the certificate of authority issued to 10 Id., at p. 37.
radio and television stations,” though this point is neither
10 11 Id., at p. 111.

followed up nor bolstered by appropriate citations which 549


should be plenty. VOL. 545, FEBRUARY 15, 2008 549
One relevant point of fact is raised in the Comment filed by Chavez vs. Gonzales
the Office of the Solicitor General (OSG) in behalf of broadcast media outlet for broadcasting the Garci tapes, an
respondents. Three (3) days after the issuance of the Press action also alleged to infringe the aforementioned
Release, the NTC and the Kapisanan ng mga Brodkaster sa constitutional rights.
Pilipinas (KBP) issued a Joint Statement crafted after a It should be stressed that there are critical differences
dialogue between them. The Joint Statement declares: between the factual and legal milieu of the assailed act of the
DOJ Secretary, on one hand, and that of the questioned
conduct of the NTC, on the other. The act complained of the III.
NTC consists in the issuance of a Press Release, while that of It should be assumed without controversy that
the DOJ Secretary is not encapsulated in a piece of paper but the Garci tapes fall within the protection of the free
comprised in utterances which nonetheless were well expression clause.
documented by the news reports at that time. There is an Much has been said in homage to the right to free
element of caution raised in the Press Release in that it does expression. It is precisely the underlying reason I can write
not precisely sanction or threaten to immediately sanction the this submission, and the reader can read this opinion or any
broadcast media for airing the Garci tapes, but it raises that news account concerning the decision and its various separate
possibility on the condition that “it has been subsequently opinions. The revolutions we celebrate in our history books
established that the said tapes are false and/or fraudulent were animated in part by an insistence that this right should
after a prosecution or appropriate investigation.” No such be recognized as integral. The right inheres in the first yawl
12

suspensive condition is embodied in the assailed acts of the of the newborn infant, and allows a person to speak honestly
DOJ Secretary. in the throes of death.
And most critical in my view is the distinction between the In 20th century American jurisprudence, the right to free
NTC and the DOJ Secretary with respect to the breadth and speech and expression has been rightly linked to the
reach of their ability to infringe upon the right to free inalienable right to liberty under the due process
expression. The NTC is a quasi-judicial regulatory body clause. Indeed,
13

attached to the Department of Transportation and


_______________
Communications exercising regulatory jurisdiction over a
limited set of subjects: the broadcast media, 12 “Freedom of expression was a concept unknown to Philippine
telecommunications companies, etc. In the scope of its jurisprudence prior to 1900. It was one of the burning issues during the
regulatory jurisdiction, it concededly has some capacity to Filipino campaign against Spain, first, in the writings of the Filipino
propagandists, and, finally, in the armed revolt against the mother country.
impose sanctions or otherwise perform acts that could
Spain’s refusal to recognize the right was, in fact, a prime cause of the
impinge on the right of its subjects of regulation to free revolution.” J. BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC
expression, although the precise parameters of its legal OF THE PHILIPPINES:ACOMMENTARY (1996 ed.), at pp. 203-204.
authority to exercise such actions have not yet been fully 13 Beginning with Gitlow v. New York, 268 U.S. 652 (1925). “For present

purposes we may and do assume that freedom of speech and of the press which
defined by this Court. are protected by the First Amendment from abridgment by Congress are
In contrast, the ability of the DOJ Secretary and the office among the fundamental personal rights and ‘liberties’ protected by the due
that he heads to infringe on the right to free expression is process clause of the Fourteenth Amendment from impairment by the
quite capacious. Unlike the NTC whose power of injunction States.” Id., at p. 666. “The incorporation of the other First Amendment rights
followed. In 1931, the Supreme Court held squarely that the freedom of the
and sanction is limited to its subjects of regulation, the DOJ press is within the protection of the ‘liberty’ guaranteed in the Fourteenth
550
551
550 SUPREME COURT REPORTS ANNOTATED VOL. 545, FEBRUARY 15, 2008 551
Chavez vs. Gonzales Chavez vs. Gonzales
Secretary heads the department of government which has the liberty cannot be actualized unless it encompasses liberty of
premier faculty to initiate and litigate the prosecution of just speech and expression. As a consequence, the same
about anybody.
methodology as applied to due process and equal protection personal, humorous or trivial nature—they all find equal
cases may hold as well to free expression cases. comfort in the Constitution. Neither should it matter through
In my view, the operative principles that should govern the what medium the expression is conveyed, whether through
adjudication of free expression cases are uncomplicated. The the print or broadcast media, through the Internet or through
infringement on the right by the State can take the mode of a interpretative dance. For as long as it does not fall under the
content-based regulation or a content-neutral regulation. above-mentioned exceptions, it is accorded the same degree of
With respect to content-based regulations, the only protection by the Constitution.
expressions that may be proscribed or punished are the Still concerning the protection afforded to the tapes, I do
traditionally recognized unprotected expressions—those that take issue with Justice Carpio’s view that “[t]he airing of the
are obscene, pose danger to national security or incite Garci tapes is essentially a political expression because it
imminent lawless action, or are defamatory. In order that 14 exposes that a presidential candidate had allegedly improper
such unprotected expressions may be restrained, it must be conversations with a COMELEC Commissioner…” and that
demonstrated that they pose a clear and present danger of the contents of the tapes “affect gravely the sanctity of the
bringing about a substantive evil that the State has a right ballot.” These statements are oriented towards the
15

and duty to prevent, such danger being grave and imminent conclusion that “[i]f ever there is a hierarchy of protected
as well. But as to all other protected expressions, there can be expressions, political expression would occupy the highest
no content-based regulation at all. No prior restraint, no rank, and among different kinds of political expression, the
subsequent punishment. subject of fair and honest elections would be at the top.” Yet16

For as long as the expression is not libelous or slanderous, even the majority opinion acknowledges that “the integrity of
not obscene, or otherwise not dangerous to the immediate the taped conversation is also suspect…” and “[t]he identity of
well-being of the State and of any other’s, it is guaranteed the wiretappers, the manner of its commission, and other
protection by the Constitution. I do not find it material related and relevant proofs are some of the invisibles of this
whether the protected expression is of a political, religious, case…given all these unsettled facets of the tape, it is even
arguable whether its airing would violate the anti-
_______________
wiretapping law.” 17

Amendment (Near v. Minnesota, [283 U.S. 697 (1931)]; in 1937 the right of To be blunt, it would be downright pretentious for the
peaceable assembly was included (DeJonge v. Oregon, 299 U.S. 353); and in Court to attribute to the tapes any definitive character,
1940 the freedom-of-religion provision was used to invalidate a Connecticut political or otherwise, because there is simply no basis for us
statute requiring a permit for all solicitors for religious and charitable causes
to make such conclusion at this point. But even if they are not
(Cantwell v. Connecticut, [310 U.S. 296 (1940)]” A.T Mason & W. Beaney,
American Constitutional Law (4th ed.), at pp. 496-497. of a political character, they nonetheless find protection under
14 The views of this writer on the proper interpretation of our libel laws in the free expression clause.
light of Section 4, Article III of the Constitution were expressed in Guingging
v. Court of Appeals, G.R. No. 128959, 30 September 2005, 471 SCRA 516. _______________
552
552 SUPREME COURT REPORTS ANNOTATED 15 Separate Concurring Opinion of Justice Carpio, p. 16.
16 Id.
Chavez vs. Gonzales 17 Decision, p. 34.

553
VOL. 545, FEBRUARY 15, 2008 553 deemed contrary to the public welfare.” In Nebraska Press
18

Chavez vs. Gonzales Association v. Stuart, the United States Supreme Court
19

IV. noted that “prior restraints on speech and publication are the
Given the constitutionally protected character of the tapes, it most serious and the least tolerable infringement on First
still falls upon the petition to establish that there was an Amendment rights.” 20

actual infringement of the right to expression by the two Yet prior restraint “by contrast and by definition, has an
denominated respondents—the DOJ Secretary and the immediate and irreversible sanction.” The assailed act of the
21

NTC—in order that the reliefs sought may avail. There are NTC, contained in what is after all an unenforceable Press
two distinct (though not necessarily exclusive) means by Release, hardly constitutes “an immediate and irreversible
which the infringement can be committed by either or both of sanction.” In fact, as earlier noted, the Press Release does not
the respondents—through prior restraint or through an act say that it would immediately sanction a broadcast station
that creates a chilling effect on the exercise of such right. which airs the Garci tapes. What it does say is that only “if it
I turn first to the assailed acts of the NTC. has been subsequently established that the said tapes are
It is evident from the Decision and the concurring opinion false and/or fraudulent after a prosecution or appropriate
of Justice Carpio that they give primary consideration to the investigation” that the stations could be subjected to possible
aspect relating to the NTC, notwithstanding the relative lack suspension. It is evident that the issuance does not prohibit
of attention devoted by the petition to that issue. The the airing of the Garci tapes or require that the broadcast
impression they leave thus is that the assailed acts of the NTC stations obtain permission from the government or the NTC
were somehow more egregious than those of the DOJ to air such tapes.
Secretary. Worse, both the Decision and the concurring How then have my esteemed colleagues, the Chief Justice
opinion reach certain conclusions on the nature of the Press and Justice Carpio, arrived at their conclusion that the Press
Release which are, with due respect, untenable. Release operated as a prior restraint? Justice Carpio
IV-A. characterizes the Press Release as a “warning,” and the
As a means of nullifying the Press Release, the document has document does use the word “warned,” yet a warning is not
been characterized as a form of prior restraint which is “an immediate and irreversible sanction.” The warning
generally impermissible under the free expression clause. The embodied in the Press Release is neither a legally enforceable
concept of prior restraint is traceable to as far back as vehicle to impose sanction nor a legally binding condition
Blackstone’s Commentaries from the 18th century. Its precedent that presages the actual sanction. However one
application is integral to the development of the modern may react to the Press Release or the perceived intent behind
democracy. “In the first place, the main purpose of such it, the issuance still does not constitute “an immediate and
constitutional provisions is ‘to prevent all such previous irreversible sanction.”
restraints upon publications as had been practiced by other
_______________
governments,’ and they do not prevent the subsequent
punishment of such as may be 18 See e.g., Patterson v. Colorado, 205 U.S. 454 (1907); Near v.
554 Minnesota, 283 U.S. 697 (1931).
19 427 U.S. 539 (1976).
554 SUPREME COURT REPORTS ANNOTATED
20 Id., at p. 559.
Chavez vs. Gonzales 21 Id.
555 22Decision, p. 19; citing J. BERNAS,THE1987CONSTITUTION OF
VOL. 545, FEBRUARY 15, 2008 555 THEREPUBLIC OF THE PHILIPPINES:ACOMMENTARY, 225 (2003 ed.)
23 Id.

Chavez vs. Gonzales 24 Id., at p. 35.

On the other hand, the Decision discusses extensively what 556


prior restraint is, characterizing it, among others things, as 556 SUPREME COURT REPORTS ANNOTATED
“official government restrictions on the press or other forms of Chavez vs. Gonzales
expression in advance of actual publication or few similarities between the two concepts especially that both
dissemination.” The
22 majority enumerates certain come into operation before the actual speech or expression
governmental acts which constitute prior restraint, such as finds light. At the same time, there are significant differences.
the approval of a proposal to publish; licensing or permits as A government act that has a chilling effect on the exercise
prerequisites to publication including the payment of license of free expression is an infringement within the constitutional
taxes for the privilege to publish; injunctions against purview. As the liberal lion Justice William Brennan
publication; the closure of the business or printing offices of announced, in NAACP v. Button, “the threat of restraint,
25

certain newspapers; or more generally, “[a]ny law or official as opposed to actual restraint itself, may deter the
[act] that requires some form of permission to be had before exercise of the right to free expression almost as
publication can be made.” 23
potently as the actual application of sanctions.” Such 26

The Press Release does not fit into any of the acts described threat of restraint is perhaps a more insidious, if not
above in the majority opinion. Neither can it be identified as sophisticated, means for the State to trample on free speech.
an “official government restriction” as it simply does not levy Protected expression is chilled simply by speaking softly while
any actual restriction on the subjects of NTC regulation. Still, carrying a big stick.
without undertaking a demonstration how the Press Release In distinguishing chilling effect from prior
actually restrained free expression, the majority surprisingly restraint, Nebraska Press Association, citing Bickel, observed,
makes a leap of logic, concluding as it does that such an “[i]f it can be said that a threat of criminal or civil sanctions
informal act as a press statement is covered by the prior after publication ‘chills’ speech, prior restraint “freezes” it at
restraint concept. As with Justice Carpio, the majority does
24
least for the time.” An act of government that chills
27

not precisely explain how the Press Release could constitute expression is subject to nullification or injunction from the
an actual restraint, worded as it was with nary a notion of courts, as it violates Section 3, Article III of the Constitution.
restriction and given its lack “of an immediate and “Because government retaliation tends to chill an individual’s
irreversible sanction.” exercise of his right to free expression, public officials may not,
Absent prior restraint, no presumption of invalidity can as a general rule, respond to an individual’s protected activity
arise. with conduct or speech even though that conduct or speech
IV-B. would otherwise be a lawful exercise of public authority. 28

I fear that the majority especially has unduly fused the On the one hand, Justice Carpio does not bother to engage
concepts of “prior restraint” and “chilling effect.” There are a in any “chilling effect” analysis. On the other hand, the major-
_______________ _______________

25 371 U.S. 415 (1963).


26 See NAACP v. Button, 371 U.S. 415, 433 (1963). Emphasis supplied. _______________
27 Supra note 19 at p. 559; citing A. BICKEL, THE MORALITY OF
CONSENT(1975). 29 “The Court notes, however, that it has found no case in which a First
28 The Baltimore Sun Company v. Ehrlich, No. 05-1297 (U.S. 4th Circuit),
Amendment claim went forward in the absence of allegations or evidence that
15 February 2006; citing Board of Country Commissioners v. Umbehr, 518 speech was actually chilled.” Zieper v. Metzinger, No. 00 Civ. 5595 (PKC), U.S.
U.S. 668, 674 (1996). District Court, S.D. New York, 22 August 2005; citing Davis v. Village Park II
557 Realty Co., 578 F.2d at p. 464.
30 Local 491, International Brotherhood of Police Officers v. Gwinnet
VOL. 545, FEBRUARY 15, 2008 557
County, 510 F.Supp. 2d1271.
Chavez vs. Gonzales 558
ity does conclude that the acts of the NTC had a chilling effect. 558 SUPREME COURT REPORTS ANNOTATED
Was there truly a chilling effect resulting from the Press Chavez vs. Gonzales
Release of the NTC? as a result of their known membership in the group. 357 U.S. at
While the act or issuance itself may evince the impression 46465, 78 S.Ct. 1163. The Court in Buckley v. Valeo, however,
of a chilling effect, there still must be factual evidence to emphasized, in rejecting a challenge to campaign finance disclosure
support the conclusion that a particular act of government laws based on its alleged chilling effect on political association, that
actually engendered a chilling effect. There appears to be there was no record evidence of a chilling effect proving a violation
no case in American jurisprudence where a First of the right to association. Buckley, 424 U.S. at 71-72, 96 S.Ct. 612
Amendment claim went forward in the absence of (noting that failure to tender evidence of chilling effect lessened
evidence that speech was actually chilled. 29 scrutiny applied to First Amendment challenge to campaign
In a case decided just last year by a U.S. District Court in donation disclosure laws).
Seizing on this apparent evidentiary requirement, several lower
Georgia, the following summary was provided on the
30

courts have rejected right of association challenges for lack of


evidentiary requirement in claims of a chilling effect in the
evidence of a chilling effect. See, e.g., Richey v. Tyson, 120
exercise of First Amendment rights such as free speech and F.Supp.2d 1298, 1324 (S.D.Ala.2000) (requiring, in challenge of
association: campaign finance law, evidence of a “reasonable probability” of
threats, harassment, or reprisals “from sources such as specific
4. Proof of Chilling Effect evidence of past or present harassment of members or of the
organization, a pattern of threats, specific manifestations of public
Defendants’ argue that Plaintiffs have failed to introduce evidence
hostility, or conduct visited on organizations holding similar
of a chilling effect, which is required to maintain a First
views”); Alabama State Federation of Teachers, AFL-CIO v. James,
Amendment claim. There is some uncertainty regarding the extent
656 F.2d 193, 197 (5th Cir. Unit B Sept.17, 1981) (rejecting right of
of evidence required to sustain a First Amendment challenge based
association challenge for lack of evidence of chilling effect); Int’l
on the chilling effect of compelled disclosure of protected political
Organization of Masters, Mates, and Pilots, 575 F.2d 896, 905
activity. See In re Grand Jury Proceeding, 842 F.2d 1229, 1235-36
(D.C.Cir.1978) (same).
(11th Cir.1988). The Supreme Court has indicated on several
But the Eleventh Circuit has drawn a distinction between
occasions that some evidence of a chilling effect is required.
challenges to political campaign donation disclosure rules of the
In NAACP, for example, the Supreme Court accepted that a
sort at issue in Buckleyand Richey and challenges to government
chilling effect would result from the compelled disclosure of the
investigations into “particular political group or groups” of the sort
NAACP’s membership lists because of “uncontroverted evidence” in
in NAACP and at issue in this case. See In re Grand Jury
the record that members of the NAACP had suffered past adversity
Proceeding, 842 F.2d at 1236. In doing so, the Eleventh Circuit
suggested that a “more lenient” showing applies to targeted that the record contains no evidence that would support a finding
investigations because “the government investigation itself may that a required response to this question would chill the applicant’s
indicate the possibility of harassment.” Id.; see also Pollard v. or family member’s associational activities. However, in light of the
Roberts, 283 F.Supp. 248, 258 (D.C.Ark.1968), aff’d per curiam 393 absence of any legitimate interest asserted by the City to justify the
U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (finding prosecutor’s inquiry, we conclude that the question would not even withstand a
attempt to subpoena the names of contributors to a political more relaxed scrutiny than that usually applied to questions which
campaign unconstitutional, despite “no evidence of record in this seek disclosure of associational ties.”).” 31

case that any individuals have as yet been subjected to reprisals on It makes utter sense to impose even a minimal evidentiary
account of the contributions in question,” because “it would be naive requirement before the Court can conclude that a particular
not to recognize that the disclosure of the identities of contributors government action has had a chilling effect on free speech.
to campaign funds would subject at least some of them to potential Without an evidentiary standard, judges will be forced to rely
economic or political reprisals of greater or lesser
on intuition and even personal or political sentiments as the
severity”); cf. also Lady J. Lingerie, Inc. v. City of Jacksonville, 176
basis for determining whether or not a chilling effect is
F.3d 1358, 1366-67 (11th Cir.1999) (concluding, without discuss
559 present. That is a highly dangerous precedent, and one that
VOL. 545, FEBRUARY 15, 2008 559 clearly has not been accepted in the United States. In fact, in
Chavez vs. Gonzales _______________
ing record evidence of chilling effect, that statute which required
disclosure of names of principal stockholders of adult Id., at pp. 1294-1296.
31

entertainment establishments was abridgement of First 560


Amendment). 560 SUPREME COURT REPORTS ANNOTATED
In addition, concerns about the economic vulnerabilities of Chavez vs. Gonzales
public employees have led courts to more easily find the presence of Zieper v. Metzinger, the U.S. District Court of New York
32

a chilling effect on disclosure rules imposed on public employees.


found it relevant, in ruling against the petitioner, that Zieper
See, e.g., Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v.
“has stated affirmatively that his speech was not chilled in
Waterfront Commission of New York Harbor, 667 F.2d 267, 271-72
(2d Cir.1981). Where the government has “pervasive control over any way.” “Where a party can show no change in his
33

the economic livelihood” or “professional destiny” of its employees, behavior, he has quite plainly shown no chilling of his First
it may be obvious that compelling disclosure of organizational Amendment right to free speech.” 34

affiliations under threat of discipline could create a “substantial In view of its regulatory jurisdiction over broadcast media,
danger” of an “inevitable” chilling effect. Id. Thus, when examining the ability of the NTC to infringe the right to free expression
freedom of association challenges in the public employment context, extends only to its subjects of regulation, not to private
courts have applied a “common sense approach.” Id. at 272; see persons such as petitioner. Thus, to consider at bar whether
also Shelton, 364 U.S. at 486, 81 S.Ct. 247 (noting, in finding or not the NTC Press Release had a chilling effect, one must
questionnaire distributed to public teachers inquiring into their look into the evidence on record establishing the broadcast
organizational memberships unconstitutional, that burden on
media’s reaction to the Press Release.
teacher’s freedom to associate was “conspicuously accented when
The majority states that “[t]here is enough evidence of
the teacher serves at the absolute will of those to whom the
disclosure must be made,” and not discussing evidence of chilling chilling effect of the complained acts of record,” alluding to
effect); Fraternal Order of Police, 812 F.2d at 119-20 (“We recognize “the warnings given to media [which] came from no less the
NTC, a regulatory agency that can cancel the Certificate of The majority casts aspersions on the KBP for “inexplicably
Authority of the radio and broadcast media.” With due 35 joining the NTC in issuing an ambivalent Joint Press
respect, I submit that what the record establishes is merely Statement” and on the perceived “silence on the sidelines on
the presence of the cause for chilling (the Press Release), but the part of some media practitioners.” Yet these are
37

not the actual chilling effect itself on the broadcast media. In derogatory conjectures that are not supported by the record.
that respect, the Joint Statement of the NTC and the KBP It is quite easy to draw such negative inference, but there is
executed just three (3) days after the issuance of the Press another inference that can be elicited from the evidence on
Release, becomes material. record—that the KBP was so satisfied with the NTC’s actions
In the employment of the “chilling effect mode of analysis,” it consented to the averments in the Joint Statement. Since
disregarding the actual effects would mean dispensing with Independence, and outside of the Marcos years, there is no
any evidentiary requirement for the constitutional claim. tradition of cowardice on the part of the Philippine media,
That is a doctrine which does not bode well for the Court’s even in the face of government retribution. Indeed, it is false
future in constitutional adjudication, and one I expect that and incongruous to dilute with aspersions of docility and
will be significantly modified in due time. inertness the true image of the most robust, vigilant and
strident media in Asia.
_______________
The best indication that the Philippine broadcast media
32 Supra note 18. was cowered or chilled by the NTC Press Release, if ever,
33 Id., at p. 526. would have been its initiation of a suit similar to that at bar,
34 Id., citing Curly v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001), at p. 73.
or its participation herein. The fact that it did not can lead to
35 Decision, p. 35.
the reasonable assumption that the Press Release did not
561
VOL. 545, FEBRUARY 15, 2008 561 _______________
Chavez vs. Gonzales
In the Joint Statement, the KBP assented to the Rollo, p. 86.
36

Decision, pp. 35-36.


37

manifestation that “NTC did not issue any [Memorandum 562


Circular] or Order constituting a restraint of press freedom or 562 SUPREME COURT REPORTS ANNOTATED
censorship, as well as disavowed having acted or intending “to Chavez vs. Gonzales
limit or restrict the interview of members of the opposition or instill fear in the members of the broadcast media, for they
free expression of views.” The Joint Statement can certainly
have since then, commendably and in true-to-form fashion
36

be taken in favor of the NTC as proof that its Press Release challenged before the courts other NTC issuances which they
did not actually create a chilling effect on the broadcast perceived as actual threats to their right to free expression.38

media. On its face, it evinces the KBP’s contentment with the It bears adding that I had proposed during the
Press Release and all other steps taken by the NTC with deliberations of this case that the KBP or other large media
respect to the Garci tapes, coupled with the acknowledgment organizations be allowed to intervene should they be so
that the NTC had not infringed the right to free expression of minded, if only to elicit their views for the record whether the
its subjects of regulation. NTC by issuing the Press Release truly chilled the exercise of
their rights to expression, notwithstanding the Joint
Statement. After all, it would be paternalistic at best, would provide a more fortuitous venue for the settlement of
presumptuous at worst, for the Court to assume that those questions.
conclusion without affording the broadcast media the IV-C.
opportunity to present its views on the question. Yet a The majority and concurring opinions hardly offer any rebuke
majority of the members of the Court declined to take to the DOJ Secretary even as they vote to grant affirmative
that step, thereby disallowing the introduction of more relief against his actions. This ensued, I suspect, due to the
sufficient evidence to warrant a ruling against the undue focus placed on the arguments concerning the NTC,
NTC. even though the petition itself was not so oriented. But for my
Thus, we are left with utter paucity of evidence that the part, it is the unequivocal threats to prosecute wouldbe-
NTC had infringed the press freedom of its subjects of offenders, made no less by the head of the principal law
regulation mainly because of the broadcast media’s agency of the government charged with the administration of
nonparticipation in the petition at bar. If only on that account, the criminal justice system, that constitute the violation of a
39

I have to vote against the writ sought against the NTC. To fundamental freedom that in turn warrants this Court’s
decide otherwise would simply set an injudicious precedent intervention.
that permits the affirmative relief to constitutional claims The particular acts complained of the DOJ Secretary are
without having to bother with the need for evidence. explained in detail in the petition, narrated in the 40

There is another point raised with respect to the NTC decision, and corroborated by contemporary news accounts
41

aspect of this case, and that is the question of whether the published
NTC actually has the statutory authority to enjoin or sanction
_______________
the broadcast of the tapes. The majority opinion does not
conclusively settle that question, and that is for the best, 39 See Section 1, Chapter 1, Title III, Book IV, Administrative Code of 1987,

given the absence of comprehensive arguments offered by the which contains the “Declaration of Policy” of the Department of Justice. “It is
petitioner the declared policy of the State to provide the government with a principal law
agency which shall be both its legal counsel and prosecution arm; administer
_______________ the criminal justice system in accordance with the accepted processes thereof
consisting in the investigation of the crimes, prosecution of offenders and
38 At least one case which has reached this Court challenges the validity of administration of the correctional system; x x x”
40 Rollo, pp. 8-10.
certain issuances of the NTC which were promulgated or reiterated shortly
41 Decision, pp. 3-4.
after the February 2006 declaration of a “state of emergency.”
563 564
VOL. 545, FEBRUARY 15, 2008 563 564 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales Chavez vs. Gonzales
on that issue. I reserve my right to offer an opinion on that at that time. The threats are directed at anybody in
42

question in the appropriate case. Suffice it to say, there are at possession of, or intending to broadcast or disseminate, the
least two other cases now pending with this Court which raise tapes. Unlike the NTC, the DOJ Secretary has the actual
precisely that question as the central issue and not merely as capability to infringe the right to free expression of even the
an afterthought. Those cases, which do offer more copious petitioner, or of anybody for that matter, since his office is
arguments on that issue than those presented before us, empowered to initiate criminal prosecutions. Thus,
petitioner’s averments in his petition and other submissions have been quoted inaccurately or out of context. Yet the OSG 46

comprise the evidence of the DOJ Secretary’s infringement of does not deny that the statements were made, failing even to
47

the freedom of speech and expression. offer what may have been the “accurate context.” The OSG
Was there an actual infringement of the right to free also points out that the DOJ Secretary has not actually “made
expression committed by the DOJ Secretary? If so, how was any issuance, order or instruction to the NBI to go after such
such accomplished? Quite clearly, the DOJ Secretary did media organizations.” Yet the fact that the DOJ Secretary has
infringe on the right to free expression by employing “the yet to make operational his threats does not dissuade from the
threat of restraint,” thus embodying “government retaliation
43 conclusion that the threats alone already chilled the
[that] tends to chill an individual’s exercise of his right to free atmosphere of free speech or expression.
expression.” The DOJ Secretary plainly and directly
44 V.
threatened anyone in possession of the Garci tapes, or anyone By way of epilogue, I note that the Garci tapes have found
who aired or disseminated the same, with the extreme shelter in the Internet after the broadcast media lost interest
48

sanction of criminal prosecution and possible imprisonment. in airing those tapes, after the newsprint that contained the
He reiterated the threats as he directed the NBI to investigate transcript had dissembled. The tapes are widely available on
the airing of the tapes. He even extended the warning of the Internet and not only in websites maintained by
sanction to the Executive Press Secretary. These threats were traditional media outfits, but also in such media-sharing sites
evidently designed to stop the airing or dissemination of as Google-owned YouTube, which has at least 20 different
the Garcitapes—a protected expression which cannot be files of the tapes. Internationally popular websites such as
49

enjoined by executive fiat. the online encyclopedia Wikipedia have linked to the tapes as
Tasked with undertaking the defense of the DOJ Secretary,
_______________
the OSG offered not even a ghost of a contest as soon as the
bell for the first round rang. In abject surrender, it squeezed 45 Rollo, p. 75.
46 Id.
_______________ 47 See also note 42.

48 Already, the U.S. Supreme Court in Reno v. ACLU , 521 U.S. 844 had

42 See e.g., “DOJ warns media vs. playing tapes” (first published by ABS-
pronounced that the factors that justify the government regulation of the
CBN News on 10 June 2005), at broadcast medium are not present in cyberspace. It will be inevitable that this
http://www.abscbnnews.com/topofthehour.aspx?StoryId=7564 (last visited, 13 Court will soon have to adjudicate a similar issue.
February 2008). 49 See http://www.youtube.com/results?search_query=Hello+Garci.

43 See note 26.


(“Search Results for “Hello Garci”).
44 See note 28.
566
565 566 SUPREME COURT REPORTS ANNOTATED
VOL. 545, FEBRUARY 15, 2008 565
Chavez vs. Gonzales
Chavez vs. Gonzales
well. Then there is the fact that excerpts of the tapes were
50

in just one paragraph in its 27-page Comment for that


45
remixed and widely distributed as a popular ringtone for
purpose. cellular phones.
The arguments offered in that solitary paragraph are Indeed, the dimensions of the issue have long extended
meager. It avers that the media reports are without probative beyond the Philippine mass media companies and the NTC.
value or, at best, inconclusive as the declarations therein may
This issue was hardly limited to the right of Philippine radio/TV primetime material; it was given by the agency
broadcast media to air the tapes without sanction from the empowered to issue, suspend, or altogether cancel the
NTC. It involved the right of any person wherever in the world certificate of authority of owners or operators of radio or
situated to possess and disseminate copies of the tape without broadcast media; the chilling effect the warning has on media
fear of reprisal from the Philippine government. owners, operators, or practitioners; and facts are obtaining
Still, the vitality of the right to free expression remains the casting doubt on the proposition that airing the controversial
highlight of this case. Care and consideration should be tape would violate the anti-wiretapping law.
employed in presenting such claims before the courts, and the I also agree with the Chief Justice’s observation that the
hope is for a growing sophistication and specialization in the prior restraining warning need not be embodied in a formal
litigation of free speech cases. order or circular, it being sufficient that such warning was
For all the above, I vote to GRANT the petition against made by a government agency, NTC in this case, in the
respondent DOJ Secretary and DISMISS the same insofar as performance of its official duties. Press releases on a certain
the NTC is concerned. subject can rightfully be treated as statements of official
CONCURRING and DISSENTING OPINIONS position or policy, as the case may be, on such subject.
To me, the facts on record are sufficient to support a
VELASCO, JR., J.: conclusion that the press release issued by NTC—with all the
unmistakable threat embodied in it of a possible cancellation
I concur in the results of the majority opinion penned by Chief of licenses and/or the filing of criminal cases against erring
Justice Puno, but only insofar as the NTC aspect of the case media owners and practitioners—constitutes a clear instance
is concerned. of prior restraint. Not lost on this writer is the fact that five
The opinion of the Chief Justice—upon which this (5) days after it made the press release in question, NTC
concurrence hinges—is to the effect that the warning issued proceeded to issue jointly with the Kapisanan ng mga
by the NTC, by way of a press release, that the continuous Broadcasters sa Pilipinas (KBP) another press release to
airing or broadcast of the “Garci Tapes” is a violation of the clarify that the earlier one issued was not intended to limit or
AntiWiretapping Law, restricts the freedom of speech and of restrain press freedom. With the view I take of the situation,
the press and constitutes a content-based prior restraint the very fact that the KBP agreed to come up with the joint
impermissible under the Constitution. The quality of press statement that “NTC did not issue any [Memorandum
impermissi- Circular] or order constituting a restraint of press freedom or
_______________
censorship” tends to prove, rather than disprove, the
threatening and chilling tone of its June 11, 2005 press
See “Hello Garci scandal” (http://en.wikipedia.org/wiki/Hello_Garci).
50
release. If there was no prior restraint from the point of view
567 of media, why was there a need to hold a dialogue with KBP
VOL. 545, FEBRUARY 15, 2008 567 and then issue a clarifying joint statement?
Chavez vs. Gonzales 568
bility comes in owing to the convergence and combined effects 568 SUPREME COURT REPORTS ANNOTATED
of the following postulates, to wit: the warning was issued at Chavez vs. Gonzales
the time when the “Garci Tapes” was newspaper headline and
Moreover, the fact that media owners, operators, and VOL. 545, FEBRUARY 15, 2008 569
practitioners appeared to have been frozen into inaction, not Chavez vs. Gonzales
making any visible effort to challenge the validity of the NTC In all, the NTC statement coupled with other circumstances
press statement, or at least join the petitioner in his battle for convince this writer that there was indeed a chilling effect on
press freedom, can only lead to the conclusion that the chilling the TV/radio owners, in particular, and media, in general.
effect of the statement left them threatened. While the Court has several pieces of evidence to fall back
The full ventilation of the issues in an oral argument would on and judiciously resolve the NTC press release issue, the
have been ideal, particularly so since TV and radio operators situation is different with respect to the Department of
and owners opted not to intervene nor were asked to give their Justice (DOJ) warning issue. What is at hand are mere
comment on the chilling effect of the NTC press statement. allegations in the petition that, on June 8, 2005, respondent
Nonetheless, I find the admissions in the pleadings and the DOJ Secretary Raul Gonzales warned reporters in possession
attachments thereto to be more than sufficient to judiciously of copies of the compact disc containing the alleged “Garci”
resolve this particular issue. The contents of the June 11, 2005 wiretapped conversation and those broadcasting or
press release eloquently spoke for themselves. The NTC publishing its contents that they could be held liable under
“warning” is in reality a threat to TV and radio station owners the AntiWiretapping Act, adding that persons possessing or
and operators not to air or broadcast the “Garci Tapes” in any airing said tapes were committing a continuing offense,
of their programs. The four corners of the NTC’s press subject to arrest by anybody who had personal knowledge of
statement unequivocally reveal that the “Garci Tapes” may the crime committed or in whose presence the crime was being
not be authentic as they have yet to be duly authenticated. It committed. 1

is a statement of fact upon which the regulatory body There was no proof at all of the possible chilling effect that
predicated its warning that its airing or broadcast will the alleged statements of DOJ Secretary Gonzales had on the
constitute false or misleading dissemination of information reporters and media practitioners. The DOJ Secretary, as
that could result in the suspension or cancellation of their head of the prosecution arm of the government and lead
respective licenses or franchises. The press statement was administrator of the criminal justice system under the
more than a mere notice of a possible suspension. Its crafting Administrative Code is, to be sure, impliedly empowered to
2

and thrust made it more of a threat—a declaration by the issue reminders and warnings against violations of penal
regulatory body that the operators or owners should not air or statutes. And it is a known fact that Secretary Gonzales had
broadcast the tapes. Otherwise, the menacing portion on issued, and still issues, such kind of warnings. Whether or not
suspension or cancellation of their franchises to operate he exceeded his mandate under premises is unclear. It is for
TV/radio station will be implemented. Indeed, the very press this main reason that I found the prior-restraint issue in the
statement speaks eloquently on the chilling effect on media. DOJ aspect of the case not yet ripe for adjudication.
One has to consider likewise the fact that the warning was not I, therefore, register my concurrence with the ponencia of
made in an official NTC circular but in a press statement. The Chief Justice Reynato S. Puno insofar as it nullifies the official
press statement was calculated to immediately inform the statement made by respondent NTC on June 11, 2005,
affected sectors, unlike the warning done in a circular which
may not reach the intended recipients as fast. _______________
569
1 Rollo, pp. 8-9 & 59.
2Sec. 1, Chapter I, Title III of Book IV. prohibition already contained in its previous circulars, and
570
even in the authorizations and permits of radio and television
570 SUPREME COURT REPORTS ANNOTATED stations. The reason thus escapes me as to why said
Chavez vs. Gonzales prohibition, when it was
but dissent, with regrets, with respect to the nullification of 571
the June 8, 2005 official statement of respondent Secretary of VOL. 545, FEBRUARY 15, 2008 571
Justice. Chavez vs. Gonzales
SEPARATE OPINION stated in the NTC Memorandum Circulars and in the
authorizations and permits, was valid and acceptable, but
CHICO-NAZARIO, J.: when it was reiterated in a mere press statement released
by the NTC, had become a violation of the Constitution as a
With all due respect, I vote to dismiss the present Petition for
prior restraint on free speech.
the simple reason that the assailed press statements made by
In the midst of the media frenzy that surrounded the Garci
the National Telecommunications Commission (NTC) and the
tapes, the NTC, as the administrative body tasked with the
Secretary of Justice Raul Gonzales (Gonzales) do not
regulation of radio and television broadcasting companies,
constitute prior restraint that impair freedom of speech.
cautioned against the airing of the unauthenticated tapes.
There being no restraint on free speech, then there is even no
The warning of the NTC was expressed in the following
need to apply any of the tests, i.e., the dangerous tendency
manner, “[i]f it has been (sic) subsequently established that
doctrine, the balancing of interests test, and the clear and
the said tapes are false and/or fraudulent after a prosecution
present danger rule, to determine whether such restraint is
or appropriate investigation, the concerned radio and
valid.
television companies are hereby warned that their
The assailed press statements must be understood and
broadcast/airing of such false information and/or willful
interpreted in the proper perspective. The statements must be
misrepresentation shall be just cause for the suspension,
read in their entirety, and interpreted in the context in which
revocation and/or cancellation of the licenses or
they were made.
authorizations issued to the said companies.” According to the
A scrutiny of the “fair warning” issued by the NTC on 11
foregoing sentence, before anypenalty could be imposed
June 2005 reveals that it is nothing more than that, a fair
on a radio or television company for airing the Garci
warning, calling for sobriety, care, and circumspection in the
tapes, the tapes must have been established to be false
news reporting and current affairs coverage by radio and
and fraudulent after prosecution and investigation. The
television stations. It reminded the owners and operators of
warning is nothing new for it only verbalizes and applies to
the radio stations and television networks of the provisions in
the particular situation at hand an existing prohibition
NTC Memorandum Circulars No. 11-12-85 and 22-89, which
against spreading false information or willful
are also stated in the authorizations and permits granted to
misrepresentation by broadcast companies. In fact, even
them by the government, that they shall not use their stations
without the contested “fair warning” issued by the NTC,
for the broadcasting or telecasting of false information or
broadcast companies could still face penalties if, after
willful misrepresentation. It must be emphasized that the
investigation and prosecution, the Garci tapes are established
NTC is merely reiterating the very same
to be false and fraudulent, and the airing thereof was done to
purposely spread false information or misrepresentation, in OF MATERIALS THAT WOULD CONSTITUTE
violation of the prohibition stated in the companies’ INCITING TO SEDITION AND/OR REBELLION.
authorizations and permits, as well as the pertinent NTC  • THE KBP CODES ALSO REQUIRE THAT NO FALSE
Memorandum Circulars. STATEMENT OR WILLFUL MISREPRESENTATION IS
Moreover, we should not lose sight of the fact that just MADE IN THE TREATMENT OF NEWS OR
three days after its issuance of its “fair warning,” or on 14 COMMENTARIES.
June 2005, the NTC again released another press statement,  • THE SUPPOSED WIRETAPPED (sic) TAPES SHOULD
572 BE TREATED WITH SENSITIVITY AND HANDLED
572 SUPREME COURT REPORTS ANNOTATED RESPONSIBLY GIVING DUE CONSIDERATION TO
Chavez vs. Gonzales THE PROCESSES BEING UNDERTAKEN TO VERIFY
this time, jointly made with the Kapisanan ng Broadcasters
sa Pilipinas (KBP), to the effect that: 573
JOINT PRESS STATEMENT: NTC AND KBP VOL. 545, FEBRUARY 15, 2008 573
Chavez vs. Gonzales
 • CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM,
AND OBSERVANCE OF LAW, AND THE RADIO AND  AND VALIDATE THE AUTHENTICITY AND ACTUAL
TELEVISION CODES. CONTENT OF THE SAME.
 • NTC RESPECTS AND WILL NOT HINDER FREEDOM
OF THE PRESS AND THE RIGHT TO INFORMATION The relevance of the afore-quoted press statement cannot be
ON MATTERS OF PUBLIC CONCERN. KBP & ITS downplayed. It already categorically settles what NTC meant
MEMBERS HAVE ALWAYS BEEN COMMITTED TO and how the KBP understood the 11 June 2005 NTC press
THE EXERCISE (sic) PRESS FREEDOM WITH HIGH statement. We cannot insist to give a different and more
SENSE OF RESPONSIBILITY AND DISCERNING sinister interpretation to the first press statement, when the
JUDGMENT OF FAIRNESS AND HONESTY. second press statement had already particularly defined the
 • NTC DID NOT ISSUE ANY MC OR ORDER context by which it should be read.
CONSTITUTING A RESTRAINT OF PRESS FREEDOM Neither should we give much merit to the statements made
OR CENSORSHIP. NTC FURTHER DENIES AND DOES by Secretary Gonzales to the media that he had already
NOT INTEND TO LIMIT OR RESTRICT THE instructed the National Bureau of Investigation (NBI) to
INTERVIEW OF MEMBERS OF THE OPPOSITION OR monitor all radio stations and television networks for possible
FREE EXPRESSION OF VIEWS. violations of the Anti-Wiretapping Law. Secretary Gonzales is
 • WHAT IS BEING ASKED BY NTC IS THAT THE one of media’s favorite political personalities, hounded by
EXERCISE OF PRESS FREEDOM IS DONE reporters, and featured almost daily in newspapers, radios,
RESPONSIBLY. and televisions, for his “quotable quotes,” some of which
 • KBP HAS PROGRAM STANDARDS THAT KBP appeared to have been uttered spontaneously and flippantly.
MEMBERS WILL OBSERVE IN THE TREATMENT OF There was no showing that Secretary Gonzales had actually
NEWS AND PUBLIC AFFAIRS PROGRAMS. THESE and officially ordered the NBI to conduct said monitoring of
INCLUDE VERIFICATION OF SOURCES, NONAIRING
radio and television broadcasts, and that the NBI acted in most threatened by the same, did not find it necessary to go
accordance with said order. Which leads me to my next point. to court. They should have been the ones to have felt and
We should be judicious in giving too much weight and attested to the purported chilling effect of said press
credence to press statements. I believe that it would be a statements. Their silence in all this speaks for itself.
dangerous precedent to rule that press statements should be In view of the foregoing, I vote for the denial of the present
deemed an official act of the administrative agency or public petition.
official concerned. Press statements, in general, can be easily DISSENTING OPINION
manufactured, prone to alteration or misinterpretation as
they are being reported by the media, and may, during some NACHURA, J.:
instances, have to be made on the spot without giving the
source much time to discern the ramifications of his I respectfully register my dissent to the majority opinion
statements. Hence, they cannot be given the same weight and penned by the esteemed Chief Justice. The assailed press
binding effect of official acts in the form of, say, memorandum releases and statements do not constitute a prior restraint on
orders or circulars. free speech. It was not improper for the NTC to warn the
Even if we assume arguendo that the press statements are broadcast media that the airing of taped materials, if
official issuances of the NTC and Secretary Gonzales, then subsequently shown to be false, would be a violation of law
574 and of the terms of their certificate of authority, and could
574 SUPREME COURT REPORTS ANNOTATED lead, after
575
Chavez vs. Gonzales
VOL. 545, FEBRUARY 15, 2008 575
the petitioner alleging their unconstitutionality must bear the
burden of proving first that the challenged press statements
Chavez vs. Gonzales
did indeed constitute prior restraint, before the presumption appropriate investigation, to the cancellation or revocation of
of invalidity of any system of prior restraint on free speech their license.
could arise. Until and unless the petitioner satisfactorily The Facts
discharges the said burden of proof, then the press statements This case arose from events that transpired a year after the
must similarly enjoy the presumption of validity and 2004 national and local elections, a period marked by disquiet
constitutionality accorded to statutes, having been issued by and unrest; events that rocked the very foundations of the
officials of the executive branch, a co-equal. The NTC and present administration.
Secretary Gonzales must likewise be accorded the To recall, on June 5, 2005, Press Secretary Ignacio Bunye
presumption that they issued the questioned press conveyed to reporters that the opposition was planning to
statements in the regular performance of their duties as the destabilize the administration by releasing an audiotape of a
regulatory body for the broadcasting industry and the head of bugged mobile phone conversation allegedly between the
the principal law agency of the government, respectively. President of the Republic of the Philippines and a
Significantly also, please allow me to observe that the highranking official of the Commission on Elections
purported chilling effect of the assailed press statements was (COMELEC). 1

belied by the fact that the owners and operators of radio The following day, June 6, 2005, Secretary Bunye
stations and television networks, who were supposed to feel presented and played two compact discs (CD’s) to the
Malacañan Press Corps, and explained that the first On June 11, 2005, after several news reports, respondent
contained the wiretap, while the second, the spliced, doctored, National Telecommunications Commission (NTC) issued the
and altered version which would suggest that during the 2004 following press release:
National and Local Elections the President instructed the
COMELEC official to manipulate in her favor the election Contact:
results. 2
Office of the Commissioner
National Telecommunications Commission
Atty. Alan Paguia, former counsel of then President Joseph
BIR Road, East Triangle, Diliman, Quezon City
E. Estrada, subsequently released, on June 7, 2005, the
Tel. 924-4048/924-4037
alleged authentic tape recordings of the wiretap. Included, E-mail: commissioner@ntc.gov.ph
among others, in the tapes were purported conversations of
the President, First Gentleman Jose Miguel Arroyo, NTC GIVES FAIR WARNING TO RADIO AND
COMELEC Commissioner Virgilio Garcillano, and the late TELEVISION OWNERS/OPERATORS TO OBSERVE
Senator Robert Barbers. 3 ANTI-WIRETAPPING LAW AND PERTINENT NTC
On June 8, 2005, respondent Secretary of the Department CIRCULARS ON PROGRAM STANDARDS
of Justice (DOJ), Raul Gonzalez, informed news reporters that
In view of the unusual situation the country is in today, The (sic)
persons in possession of copies of the wiretap and media
National Telecommunications Commission (NTC) calls for sobriety
_______________ among the operators and management of all radio and television
stations in the country and reminds them, especially all broadcast
1 Rollo, pp. 6-7.
2 Id., at pp. 7 and 58. _______________
3 Id., at pp. 8 and 59.

576 4 Entitled “An Act to Prohibit and Penalize Wire Tapping and Other
576 SUPREME COURT REPORTS ANNOTATED Related Violations of the Privacy of Communication, and for Other Purposes.”
5 Rollo, pp. 8-9 and 59.

Chavez vs. Gonzales 6 Id., at pp. 10 and 59.

outlets broadcasting, or publishing the contents thereof, could 577


be held liable under the Anti-Wiretapping Act [Republic Act VOL. 545, FEBRUARY 15, 2008 577
No. 4200 ]. He further told newsmen, on the following day,
4
Chavez vs. Gonzales
that he had already instructed the National Bureau of ers, to be careful and circumspect in the handling of news reportage,
Investigation (NBI) to monitor all radio stations and coverages of current affairs and discussion of public issues, by
television networks for possible violations of the said law. 5 strictly adhering to the pertinent laws of the country, the current
Then, on June 10, 2005, former NBI Deputy Director program standards embodied in radio and television codes and the
Samuel Ong presented to the media the alleged master tape existing circulars of the NTC.
recordings of the wiretap or the so-called “mother of all tapes,” The NTC said that now, more than ever, the profession of
broadcasting demands a high sense of responsibility and discerning
and disclosed that their contents were wiretapped by T/Sgt.
judgment of fairness and honesty at all times among broadcasters
Vidal Doble of the Intelligence Service of the Armed Forces of amidst all these rumors of unrest, destabilization attempts and
the Philippines (ISAFP). Ong then called for the resignation controversies surrounding the alleged wiretapping of President
of the President. 6
GMA (sic) telephone conversations.
Taking into consideration the country’s unusual situation, and propose and/or incite treason, rebellion or sedition. The foregoing
in order not to unnecessarily aggravate the same, the NTC warns directive had been reiterated in NTC Memorandum Circular No.
all radio stations and television networks owners/operators that the 22-89 which, in addition thereto, prohibited radio, broadcasting and
conditions of the authorizations and permits issued to them by television stations from using their stations to broadcast or telecast
Government like the Provisional Authority and/or Certificate of any speech, language or scene disseminating false information or
Authority explicitly provides that said companies shall not use its willful misrepresentation, or inciting, encouraging or assisting in
stations for the broadcasting or telecasting of false information or subversive or treasonable acts.
willful misrepresentation. Relative thereto, it has come to the The Commission will not hesitate, after observing the
attention of the Commission that certain personalities are in requirements of due process, to apply with full force the provisions
possession of alleged taped conversation which they claim, (sic) of the said Circulars and their accompanying sanctions on erring
involve the President of the Philippines and a Commissioner of the radio and television stations and their owners/operators. 7

COMELEC regarding their supposed violation of election laws. On June 14, 2005, respondent NTC held a dialogue with the
These personalities have admitted that the taped conversations are Officers and Board of Directors of the Kapisanan ng mga
product of illegal wiretapping operations. Broadcasters sa Pilipinas (KBP) to clarify the said press
Considering that these taped conversations have not been duly release. As a result, the NTC and the KBP issued a joint press
authenticated nor could it be said at this time that the tapes contain
release which reads: 8

an accurate or truthful representation of what was recorded


therein, (sic) it is the position of the Commission that the
JOINT PRESS STATEMENT: NTC AND KBP
continuous airing or broadcast of the said taped conversations by
radio and television stations is a continuing violation of the Anti-
Wiretapping Law and the conditions of the Provisional Authority  • CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM,
and/or Certificate of Authority issued to these radio and television AND OBSERVANCE OF LAW, AND THE RADIO AND
stations. If it has been (sic) subsequently established that the said TELEVISION CODES.
tapes are false and/or fraudulent after a prosecution or appropriate  • NTC RESPECTS AND WILL NOT HINDER FREEDOM
investigation, the concerned radio and television companies are OF THE PRESS AND THE RIGHT TO INFORMATION
hereby warned that their broadcast/airing of such false information ON MATTERS OF PUBLIC CONCERN. KBP & ITS
and/or willful misrepresentation shall be just cause for the MEMBERS HAVE ALWAYS BEEN COMMITTED TO
suspension, revocation and/or cancellation of the licenses or THE EXERCISE (SIC) PRESS FREEDOM WITH HIGH
authorizations issued to the said companies.
578 _______________
578 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales 7Id., at pp. 109-110.
8Id., at p. 116.
In addition to the above, the Commission reiterates the pertinent
579
NTC circulars on program standards to be observed by radio and
VOL. 545, FEBRUARY 15, 2008 579
television stations. NTC Memorandum Circular No. 111-12-85
explicitly states, among others, that “all radio broadcasting and Chavez vs. Gonzales
television stations shall, during any broadcast or telecast, cut off
from the air the speech, play, act or scene or other matters being  SENSE OF RESPONSIBILITY AND DISCERNING
broadcast and/or telecast if the tendency thereof” is to disseminate JUDGMENT OF FAIRNESS AND HONESTY.
false information or such other willful misrepresentation, or to
 • NTC DID NOT ISSUE ANY MC OR ORDER Id., at pp. 3-42.
10

580
CONSTITUTING A RESTRAINT OF PRESS FREEDOM
OR CENSORSHIP. NTC FURTHER DENIES AND DOES 580 SUPREME COURT REPORTS ANNOTATED
NOT INTEND TO LIMIT OR RESTRICT THE Chavez vs. Gonzales
INTERVIEW OF MEMBERS OF THE OPPOSITION OR OF PUBLIC CONCERN ENSHRINED IN ARTICLE III,
FREE EXPRESSION OF VIEWS. SECTIONS 4 AND 7 OF THE 1987 CONSTITUTION.
RESPONDENT NTC ACTED BEYOND ITS POWERS AS A
 • WHAT IS BEING ASKED BY NTC IS THAT THE
REGULATORY BODY UNDER EXECUTIVE ORDER 546 AND
EXERCISE OF PRESS FREEDOM IS DONE REPUBLIC ACT NO. 7925 WHEN IT WARNED RADIO
RESPONSIBLY. BROADCAST AND TELEVISION STATIONS WITH DIRE
 • KBP HAS PROGRAM STANDARDS THAT KBP CONSEQUENCES IF THEY CONTINUED TO AIR CONTENTS
MEMBERS WILL OBSERVE IN THE TREATMENT OF OF THE CONTROVERSIAL TAPES OF THE PRESIDENT’S
NEWS AND PUBLIC AFFAIRS PROGRAMS. THESE CONVERSATION. 11

INCLUDE VERIFICATION OF SOURCES, NON-AIRING In their Comment to the petition, the respondents, through
12

OF MATERIALS THAT WOULD CONSTITUTE the Office of the Solicitor General (OSG), countered that: (1)
INCITING TO SEDITION AND/OR REBELLION. the petitioner had no legal standing to file, and had no clear
 • THE KBP CODES ALSO REQUIRE THAT NO FALSE case or cause of action to support, the instant petition as to
STATEMENT OR WILLFUL MISREPRESENTATION IS warrant judicial review; (2) the respondents did not violate
13

MADE IN THE TREATMENT OF NEWS OR petitioner’s and/or the public’s fundamental liberties of
COMMENTARIES. speech, of expression and of the press, and their right to
 • THE SUPPOSED WIRETAPPED (SIC) TAPES SHOULD information on matters of public concern; and (3) the
14

BE TREATED WITH SENSITIVITY AND HANDLED respondent NTC did not commit any grave abuse of discretion
RESPONSIBLY GIVING DUE CONSIDERATION TO amounting to lack or excess of jurisdiction when it “fairly
THE PROCESSES BEING UNDERTAKEN TO VERIFY warned” radio and television owners/operators to observe the
AND VALIDATE THE AUTHENTICITY AND ACTUAL Anti-Wiretapping Law and pertinent NTC circulars on
CONTENT OF THE SAME. 9 program standards. 15

The Issues
On June 21, 2005, petitioner Francisco Chavez, a Filipino For the resolution, therefore, of the Court are the following
citizen, taxpayer and law practitioner, instituted the instant issues: (1) whether or not petitioner has locus standi; (2)
Rule 65 Petition for certiorari and prohibition with a prayer
10
whether or not there exists an actual case or controversy ripe
for the issuance of a temporary restraining order on the for judicial review; and (3) whether or not the respondents
following grounds: gravely abused their discretion to warrant remedial action
RESPONDENTS COMMITTED BLATANT VIOLATIONS OF THE from the Court.
FREEDOM OF EXPRESSION AND OF THE PRESS AND THE
RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS _______________

_______________ 11 Id., at p. 18.


12 Id., at pp. 56-83.
13 Id., at pp. 64-67.
9 Id., at pp. 111-112.
Id., at pp. 68-75.
14 Rollo, p. 15.
19

Id., at pp. 75-82.


15 Supra note 18.
20

581 582
VOL. 545, FEBRUARY 15, 2008 581 582 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales Chavez vs. Gonzales
On the Procedural Issues The main issues have been mooted, but the case should
Petitioner has locus standi nonetheless be resolved by the Court
Petitioner has standing to file the instant petition. The test is The exercise by this Court of the power of judicial inquiry is
whether the party has alleged such a personal stake in the limited to the determination of actual cases and
outcome of the controversy as to assure that concrete controversies. An actual case or controversy means an
21

adverseness which sharpens the presentation of issues upon existing conflict that is appropriate or ripe for judicial
which the court so largely depends for illumination of difficult determination, one that is not conjectural or anticipatory,
constitutional questions. When suing as a citizen, the person
16 otherwise the decision of the court will amount to an advisory
complaining must allege that he has been or is about to be opinion. The power does not extend to hypothetical questions
denied some right or privilege to which he is lawfully entitled since any attempt at abstraction could only lead to dialectics
or that he is about to be subjected to some burdens or and barren legal questions and to sterile conclusions
penalties by reason of the statute or act complained of. When 17 unrelated to actualities. Neither will the Court determine a
22

the issue concerns a public right, it is sufficient that the moot question in a case in which no practical relief can be
petitioner is a citizen and has an interest in the execution of granted. Indeed, it is unnecessary to indulge in academic
the laws. 18 discussion of a case presenting a moot question as a judgment
In the case at bench, petitioner Chavez justifies his thereon cannot have any practical legal effect or, in the nature
standing by alleging that the petition involves the of things, cannot be enforced. 23

enforcement of the constitutional rights of freedom of In the instant case, it is readily observable that the
expression and of the press, and to information on matters of subsequent joint statement of the respondent NTC and the
public concern. As a citizen of the Republic and as a taxpayer,
19 Officers and Board of Directors of the KBP after their June
petitioner has already satisfied the requisite personal stake 14, 2005 dialogue not only substantially diminished but, in 24

in the outcome of the controversy. In any case, the Court has fact, obliterated the effects of the earlier press warnings, thus
discretion to relax the procedural technicality on locus render-
standi, given the liberal attitude it has shown in a number of
_______________
prior cases, climaxing in David v. Macapagal-Arroyo. 20

21 Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA


_______________
392, 401. This case explains the standards that have to be followed in the
16 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429
exercise of the power of judicial review, namely: (1) the existence of an
appropriate case; (2) an interest personal and substantial by the party raising
SCRA 736, 755.
17 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896; 415
the constitutional question; (3) the plea that the function be exercised at the
earliest opportunity; and (4) the necessity that the constitutional question be
SCRA 44, 136 (2003).
18 David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483,
passed upon in order to decide the case.
22 La Bugal-B’laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 889-
171400, 171489 and 171424, May 3, 2006, 489 SCRA 160, 223.
890; 421 SCRA 148, 178 (2004).
23 Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454 SCRA 25Rufino v. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, 496
130, 138. SCRA 13, 46.
24 See Multimedia Holdings Corporation v. Circuit Court of Florida, St. 26 Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499

John’s County, 544 U.S. 1301, 125 S.Ct. 1624, 1626 (2005). SCRA 434, 447.
583 584
VOL. 545, FEBRUARY 15, 2008 583 584 SUPREME COURT REPORTS ANNOTATED
Chavez vs. Gonzales Chavez vs. Gonzales
ing the case moot and academic. Notably, the joint press may be so regulated that it shall not be injurious to the equal
statement acknowledged that “NTC did not issue any enjoyment of others having equal rights, not injurious to the
memorandum circular or order constituting a restraint of rights of the community or society. Consistent with this
27

press freedom or censorship.” principle, the exercise of the freedom may be the subject of
A case becomes moot when its purpose has become reasonable government regulation.
stale. Be that as it may, the Court should discuss and resolve
25 The broadcast media are no exception. In fact, in Federal
the fundamental issues raised herein, in observance of the Communications Commission (FCC) v. League of Women
rule that courts shall decide a question otherwise moot and Voters in America, it was held that—
28

academic if it is capable of repetition yet evasive of review. 26 “(W)e have long recognized that Congress, acting pursuant to the
The Dissent Commerce Clause, has power to regulate the use of this scarce and
The assailed press statement does not infringe on the valuable national resource. The distinctive feature of Congress’
constitutional right to free expression efforts in this area has been to ensure through the regulatory
oversight of the FCC that only those who satisfy the “public
Petitioner assails the constitutionality of respondents’ press
interest, convenience and necessity” are granted a license to use
release and statements warning radio stations and television
radio and television broadcast frequencies.”
networks of the possible cancellation of their licenses and of In the Philippines, it is the respondent NTC that has
potential criminal prosecution that they may face should they regulatory powers over telecommunications networks. In
broadcast or publish the contents of the tapes. Petitioner Republic Act No. 7925, the NTC is denominated as its
29

contends that the assailed press release and statements principal administrator, and as such shall take the necessary
infringe on the freedom of expression and of the press. measures to implement the policies and objectives set forth in
I do not agree, for the following reasons: the Act. Under Executive Order 546, the NTC is mandated,
30

among others, to establish and prescribe rules, regulations,


1. 1.The issuance of the press release was a valid exercise
standards and specifications in all cases related to the issued
of the NTC’s regulatory authority over broadcast
Certificate of Public Convenience, promulgate rules and
media.
regulations as public safety and interest may require, and
supervise and inspect the operation of radio stations and
Admittedly, freedom of expression enjoys an exalted place in
telecom-
the hierarchy of constitutional rights. But it is also a settled
principle, growing out of the nature of well-ordered civil _______________
societies that the exercise of the right is not absolute for it
27 Primicias v. Fugoso, 80 Phil. 71 (1980), quoted in Justice
_______________ Azcuna’s ponencia in Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488
SCRA 226.
28 468 U.S. 364 (1984). expression. In determining whether a restriction is a prior
33

An Act to Promote and Govern the Development of Philippine


restraint, one of the key factors considered is whether the re-
29

Telecommunications and the Delivery of Public Telecommunications.


30 Dated July 23, 1979.

_______________
585
VOL. 545, FEBRUARY 15, 2008 585 31 Section 15(e), (g), (h), Executive Order No. 546.
Chavez vs. Gonzales 32 Section 16, Executive Order No. 546.
33 State v. Haley, 687 P.2d 305, 315 (1984).
munications facilities. The NTC exercises quasi-judicial
31

586
powers. 32

586 SUPREME COURT REPORTS ANNOTATED


The issuance of the press release by NTC was well within
the scope of its regulatory and supervision functions, part of
Chavez vs. Gonzales
which is to ensure that the radio and television stations straint prevents the expression of a message. In Nebraska 34

comply with the law and the terms of their respective Press Association v. Stuart, the U.S. Supreme Court
35

authority. Thus, it was not improper for the NTC to warn the declared:
“A prior restraint… by definition, has an immediate and
broadcast media that the airing of taped materials, if
irreversible sanction. If it can be said that a threat of criminal or
subsequently shown to be false, would be a violation of law
civil sanctions after publication “chills” speech, prior restraint
and of the terms of their certificate of authority, and could “freezes” it at least for the time.”
lead, after appropriate investigation, to the cancellation or As an aspect of freedom of expression, prior restraint should
revocation of their license. not be confused with subsequent punishment. In Alexander v.
U.S., petitioner’s complaint was that the RICO forfeiture
36

1. 2.The press release was not in the nature of “prior provisions on businesses dealing in expressive materials
restraint” on freedom of expression constituted “prior restraint” because they may have an
improper “chilling” effect on free expression by deterring
Courts have traditionally recognized two cognate and others from engaging in protected speech. In rejecting the
complementary facets of freedom of expression, namely: petitioner’s contention and ruling that the forfeiture is a
freedom from censorship or prior restraint and freedom from permissible criminal punishment and not a prior restraint on
subsequent punishment. The first guarantees untrammeled speech, the U.S. Supreme Court said:
right to expression, free from legislative, administrative or “The term prior restraint is used “to describe administrative and
judicial orders which would effectively bar speech or judicial orders forbidding certain communications when issued in
publication even before it is made. The second prohibits the advance of the time that such communications are to occur.”
imposition of any sanction or penalty for the speech or Temporary restraining orders and permanent injunctions—i.e.,
publication after its occurrence. Freedom from prior restraint court orders that actually forbid speech activities—are classic
has enjoyed the widest spectrum of protection, but no real examples of prior restraints.
constitutional challenge has been raised against the validity xxxx
of laws that punish abuse of the freedom, such as the laws on Finally, petitioner’s proposed definition of the term “prior
libel, sedition or obscenity. restraint” would undermine the time-honored distinction between
barring speech in the future and penalizing past speech. The
“Prior restraint” is generally understood as an imposition
doctrine of prior restraint originated in the common law of England
in advance of a limit upon speech or other forms of
where prior restraints of the press were not permitted, but have infringed freedom of expression. In Burgos v. Chief of
punishment after publication was. This very limited application of Staff and in Eastern Broadcasting v. Dans, the closure of
39 40

the principle of freedom of speech was held inconsistent with our the printing office of the newspapers, We
First Forum and Metropolitan Mail, and of radio station DYRE in
_______________
Cebu, respectively, was ruled as violation of freedom of the
press.
34 Murray v. Lawson, 138 N.J. 206, 222; 649 A.2d 1253, 1261 (1994).
35 427 U.S. 539, 559 (1976). _______________
36 510 U.S. 909, 114 S.Ct. 295, June 28, 1993.

587 37 80 Phil. 71 (1948).


VOL. 545, FEBRUARY 15, 2008 587 38 No. L-65366, November 9, 1983, 125 SCRA 553, 564.
39 No. L-64261, December 26, 1984, 133 SCRA 800, 816.

Chavez vs. Gonzales 40 137 SCRA 647.

Amendment as long ago as Grosjean v. American Press Co. While 588


we may have given a broader definition to the term “prior restraint” 588 SUPREME COURT REPORTS ANNOTATED
than was given to it in English common law, our decisions have Chavez vs. Gonzales
steadfastly preserved the distinction between prior restraints and
On election-related restrictions, Mutuc v.
subsequent punishments. Though petitioner tries to dismiss this
distinction as “neither meaningful nor useful,” we think it is critical
COMELEC invalidated the respondent’s prohibition against
41

to our First Amendment jurisprudence. Because we have the use of taped jingles in mobile units of candidates; Adiong
interpreted the First Amendment as providing greater protection v. COMELEC struck down the COMELEC’s resolution
42

from prior restraints than from subsequent punishments, it is limiting the posting of candidates’ decals and stickers only in
important for us to delineate with some precision the defining designated areas and not allowing them in private or public
characteristics of a prior restraint. To hold that the forfeiture order vehicles; Sanidad v. COMELEC declared 43 as
in this case constituted a prior restraint would have the exact unconstitutional the COMELEC prohibition on newspaper
opposite effect. It would blur the line separating prior restraints columnists and radio commentators to use their columns or
from subsequent punishments to such a degree that it would be programs to campaign for or against the ratification of the
impossible to determine with any certainty whether a particular organic act establishing the Cordillera Autonomous
measure is a prior restraint or not.”
Region; ABS-CBN Broadcasting Corporation v.
A survey of free speech cases in our jurisdiction reveals the
COMELEC annulled the COMELEC resolution prohibiting
44

same disposition: there is prior restraint when the


the conduct of exit polls; and Social Weather Stations v.
government act forbids speech, prohibits the expression of a
COMELEC nullified Section 5.4 of Republic Act No. 9006
45

message, or imposes onerous requirements or restrictions for


and Section 24(h) of COMELEC Resolution 3636 which
the publication or dissemination of ideas. In theses cases, we
prohibited the publication of pre-election survey results
did not hesitate to strike down the administrative or judicial
within specified periods.
order for violating the free expression clause in the
On movies and television, the injunctive writs issued by
Constitution.
lower courts against the movie producers in Ayer Productions
Thus, in Primicias v. Fugoso and in Reyes v. 37

Pty. Ltd. v. Capulong and in Viva Productions v. Court of


46

Bagatsing, the refusal, without valid cause, of the City Mayor


38

Appeals were invalidated, while in Iglesia ni Cristo v. Court


47

of Manila to issue a permit for a public assembly was held to


of Appeals, the X-rating given by MTRCB to the television
48 we did not deem the Licensing Agreement for the movie
show was ruled as grave abuse of discretion. depiction of the life of Moises Padilla as imposition of an
But there is no parity between these cases and the case at impermissible limit on free speech. In Presidential
bench. Unlike the government acts in the above-cited cases, Commission on Good Government (PCGG) v.
what we have before us now is merely a press release—not an Nepomuceno, we refused to consider the PCGG takeover of
51

order or a circular—warning broadcast media on the airing of radio station DWRN as an infringement on freedom of the
an alleged taped conversation, with the caveat that should its press. In Tolentino v. Secretary of Finance, we did not yield
52

to the proposition of the press that the imposition of value


_______________
added tax (VAT) on the gross receipts of newspapers from
41 36 SCRA 228. advertisements and on their acquisition of paper, ink and
42 G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715. services for publication was an abridgment of press
43 G.R. No. 90878, January 29, 1990, 181 SCRA 529, 534-535.

44 G.R. No. 133486, January 28, 2000, 323 SCRA 811. _______________
45 G.R. No. 147571, May 5, 2001, 357 SCRA 496, 506-507.

46 Nos. L-82380 and L-82398, April 29, 1988, 160 SCRA 861. 49 Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-442; 77 S.Ct. 1325, 1328

47 G.R. No. 123881, March 13, 1997, 269 SCRA 664.


(1957).
48 G.R. No. 119673, July 26, 1996, 259 SCRA 529. 50 181 Phil. 45.

589 51 G.R. No. 78750, April 20, 1990, 184 SCRA 449, 462-463.

52 G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852,


VOL. 545, FEBRUARY 15, 2008 589
115873 and 115931, August 25, 1994, 235 SCRA 630, 675682; see also Court’s
Chavez vs. Gonzales Resolution on the motions for reconsideration, October 30, 1995, 249 SCRA
falsity be subsequently established, the act could lead to the 628, 652-656.
revocation or cancellation of their licenses, after appropriate 590
investigation. The warnings on possible license revocation 590 SUPREME COURT REPORTS ANNOTATED
and criminal prosecution are simply what they are, mere Chavez vs. Gonzales
warnings. They have no compulsive effect, as they do not freedom. In Lagunzad, we said that while the License
impose a limit on speech or other forms of expression nor do Agreement allowed the producer to portray in a movie the life
they prevent the expression of a message. of Moises Padilla, it did not confer poetic license to incorporate
The judicial angle of vision in testing the validity of the fictional embellishments. The takeover in PCGG was merely
assailed press release against the prior restraint standard is intended to preserve the assets, funds and properties of the
its operation and substance. The phrase “prior restraint” is station while it maintained its broadcasting operations. The
not a self-wielding sword, nor should it serve as a talismanic VAT in Tolentino did not inhibit or impede the circulation of
test. What is needed is a practical assessment of its operation the newspapers concerned.
in specific or particular circumstances. 49 Similarly, in the instant case, the issuance of the press
Significant are our own decisions in a number of cases release was simply part of the duties of the NTC in the
where we rejected the contention that there was infringement enforcement and administration of the laws which it is tasked
of freedom of expression. In Lagunzad v. Vda. de to implement. The press release did not actually or directly
Gonzales, after balancing the right to privacy of Padilla’s
50 prevent the expression of a message. The respondents never
family with the right to free expression of the movie producer, issued instructions prohibiting or stopping the publication of
the alleged wiretapped conversation. The warning or advisory the continuous airing of the tapes is a violation of the
in question did not constitute suppression, and the possible in AntiWiretapping Law and of the conditions of the authority
terrorem effect, if any, is not prior restraint. It is not prior granted to the broadcast stations. The assailed portion of the
restraint because, if at all, the feared license revocation and press release reads:
criminal prosecution come after the publication, not before it, “Considering that these taped conversations have not been duly
and only after a determination by the proper authorities that authenticated nor could it be said at this time that the tapes contain
there was, indeed, a violation of law. an accurate or truthful representation of what was recorded
The press release does not have a “chilling effect” therein, it is the position of the commission that the continuous
airing or broadcast of the said taped conversations by radio and
because even without the press release, existing laws—
television stations is a continuing violation of the anti-wiretapping
and rules and regulations—authorize the revocation of
law and the conditions of the provisional authority and/or
licenses of broadcast stations if they are found to have certificate of authority issued to these radio and television
violated penal laws or the terms of their authority. The 53
stations.”
majority opinion emphasizes the chilling effect of the However, that part of the press statement should not be read
challenged press releases—the fear of prosecution, in isolation, but in the context of the entire paragraph, the
cancellation or revocation of license by virtue of the said press rest of which reads:
state- If it has been subsequently established that the said tapes
are false and/or fraudulent after a prosecution or
_______________
appropriate investigation, the concerned radio and television
53 Republic Act No. 3846; Executive Order No. 546; see pertinent
companies are hereby warned that their broadcast/airing of such
memorandum circulars at false information and/or willful misrepresentation shall be just
<http://portal.ntc.gov.ph/wps/portal/!ut/p/.cmd/cs/.ce/7_0_A/.s/7_0_MA/_s.7_0_ cause for the
A/7_0_MA> (visited: January 3, 2008); see also terms and conditions of
provisional authority and/or certificate of authority granted to radio and _______________
television stations, Rollo, pp. 119-128.
591 54 See Multimedia Holdings Corporation v. Circuit Court of Florida, St.

VOL. 545, FEBRUARY 15, 2008 591 John’s County, supra note 24, at pp. 1626-1627.
55 Id.

Chavez vs. Gonzales 592


ments. With all due respect, the majority loses sight of the
54
592 SUPREME COURT REPORTS ANNOTATED
fact that the press statements are not a prerequisite to Chavez vs. Gonzales
prosecution, neither does the petition demonstrate that suspension, revocation and/or cancellation of the licenses or
prosecution is any more likely because of them. If the authorizations issued to the said companies.”
prosecutorial arm of the Government and the NTC deem a Obviously, this latter portion qualifies the earlier part of the
media entity’s act to be violative of our penal laws or the rules paragraph. Only when it has been sufficiently established,
and regulations governing broadcaster’s licenses, they are after a prosecution or appropriate investigation, that the
free to prosecute or to revoke the licenses of the erring tapes are false or fraudulent may there be a cancellation or
entities with or without the challenged press releases. 55
revocation of the station’s license. There is no gainsaying that
The petitioner likewise makes capital of the alleged prior the airing of false information or willful misrepresentation
determination and conclusion made by the respondents that constitutes a valid ground for revocation of the license, and so
is violation of the Anti-Wiretapping Law which is a criminal followed by radio stations and television networks, a common
offense. But that such revocation of license can only be provision of which reads:
effected after an appropriate investigation clearly shows that “All radio broadcasting and television stations shall provide
there are adequate safeguards available to the radio and adequate public service time, shall conform to the ethics of honest
television stations, and that there will be compliance with the enterprise; and shall not use its stations for the broadcasting or
due process clause. telecasting of obscene or indecent language, speech and/or scene, or
for the dissemination of false information or willful
It is noteworthy that in the joint press statement issued on
misrepresentation, or to the detriment of the public health or to
June 14, 2005 by the NTC and the Kapisanan ng mga
incite, encourage or assist in subversive or treasonable acts.”
56

Broadcasters sa Pilipinas, there is an acknowledgement by Accordingly, in the Provisional Authority or the Certificate of
the parties that NTC “did not issue any MC (Memorandum Authority issued to all radio, television and cable TV stations,
Circular) or order constituting a restraint of press freedom or which all licensees must faithfully abide with, there is
censorship.” If the broadcasters who should be the most
incorporated, among its terms and conditions, the following
affected by the assailed NTC press release, by this clause:
acknowledgement, do not feel aggrieved at all, we should be “Applicant-Grantee shall provide free of charge, a minimum of
guided accordingly. We cannot be more popish than the pope. thirty (30) hours/month time or access channel thru its radio/
Finally, we believe that the “clear and present danger television station facilities to the National Government to enable it
rule”—the universally-accepted norm for testing the validity to reach the population on important public issues; assist public
of governmental intervention in free speech—finds no information and education; conform with the ethics of honest
application in this case precisely because there is no prior enterprise; and shall not use its stations for the telecasting
restraint. of obscene or for dissemination of false information or
willful misrepresentation, or do any such act to the
1. 3.The penal sanction in R.A. 4200 or the revocation of detriment of public welfare, health, morals or to incite,
the license for violation of the terms and conditions of encourage, or assist in any treasonous, rebellious, or
subversive acts/ omissions.”
the provisional authority or certificate of authority is
Undoubtedly, this is a reasonable standard of conduct
permissible punishment and does not infringe on
demanded of the media outlets. The sanction that may be im-
freedom of expression.
_______________
593
VOL. 545, FEBRUARY 15, 2008 593 NTC Memorandum Circular No. 22-89.
56

Chavez vs. Gonzales 594

The Anti-Wiretapping Law (Republic Act 4200) is a penal 594 SUPREME COURT REPORTS ANNOTATED
statute. Over the years, no successful challenge to its validity Chavez vs. Gonzales
has been sustained. Conviction under the law should fittingly posed for breach thereof—suspension, cancellation or
be a just cause for the revocation of the license of the erring revocation of the station’s license after an appropriate
radio or television station. investigation has sufficiently established that there was a
Pursuant to its regulatory authority, the NTC has issued breach—is also reasonable. It cannot be characterized as
memorandum circulars covering Program Standards to be
impermissible punishment which violates freedom of matters of public concern. No grave abuse of discretion can be
expression. imputed to them.
There is no transgression of the people’s right to information One final word. With the benefit of hindsight, it is noted
on matters of public concern. that from the time the assailed press releases were issued and
With the foregoing disquisition that there was no up to the present, the feared criminal prosecution and license
infringement on freedom of expression, there is no case for revocation never materialized. They remain imagined
violation of the right to information on matters of public concerns, even after the contents of the tapes had been much
concern. Indeed, in the context of the prevailing factual milieu talked about and publicized.
of the case at bench, the petitioner’s contention can thrive only I therefore vote to dismiss the petition for certiorari and
if there is a showing that the act of the respondents prohibition.
constituted prior restraint. Petition granted, writs of certiorari and prohibition issued.
There is, therefore, no further need to belabor the point. Notes.—The concept of privileged communications is
NTC did not commit grave abuse of discretion when it issued implicit in the freedom of the press. (Borjal vs. Court of
the press release Appeals, 301 SCRA 1[1999])
Grave abuse of discretion is defined as such capricious or It must also be conceded that “television can work profound
whimsical exercise of judgment equivalent to lack of changes in the behavior of the people it focuses on.” (Re:
jurisdiction. The abuse of discretion must be so patent and Request for Radio-TV Coverage of the Trial in the
gross as to amount to an evasion of a positive duty or a virtual Sandiganbayan of the Plunder Case against the Former
refusal to perform a duty enjoined by law, or to act at all in President Joseph E. Estrada, 360 SCRA 248 [2001])
contemplation of law as where the power is exercised in an When confronted with libel cases involving publications
arbitrary and despotic manner by reason of passion or which deal with public officials and the discharge of their
hostility. For grave abuse of discretion to be present,
57 official functions, the Supreme Court is not confined within
petitioner must show that the respondents violated or ignored the wordings of the libel statute—rather, the case should
the Constitution, the laws or existing jurisprudence. 58 likewise be examined under the constitutional precept of
freedom of the press. (Flor vs. People, 454 SCRA 440 [2005])
_______________
The best gauge of a free and democratic society rests in the
57 Defensor-Santiago v. Guingona, 359 Phil. 276, 304; 298 SCRA 756, 786
degree of freedom enjoyed by its media. (David vs. Macapagal-
(1998). Arroyo, 489 SCRA 160 [2006])
58 Republic of the Philippines v. COCOFED, 423 Phil. 735, 774; 372 SCRA

462, 493 (2001); Ang Bagong Bayani-OFW Labor Party v. COMELEC, 412 ——o0o——
Phil. 308, 340; 359 SCRA 698, 726 (2001).
595 596
VOL. 545, FEBRUARY 15, 2008 595 © Copyright 2018 Central Book Supply, Inc. All rights reserved.
Chavez vs. Gonzales
As discussed earlier, respondents, in making the questioned
press releases, did not violate or threaten to violate the
constitutional rights to free expression and to information on
THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION,
respondents.
G.R. No. 203378. April 22, 2014.*
G.R. No. 203335. April 22, 2014.* ALEXANDER ADONIS, ELLEN TORDESILLAS, MA.
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,
IVY P. MEDINA, JANETTE TORAL and ERNESTO JR., ROMEL R. BAGARES, and GILBERT T. ANDRES,
SONIDO, JR., petitioners, vs. THE SECRETARY OF petitioners, vs. THE EXECUTIVE SECRETARY, THE
JUSTICE, THE SECRETARY OF THE DEPARTMENT OF DEPARTMENT OF BUDGET AND MANAGEMENT, THE
THE INTERIOR AND LOCAL GOVERNMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE
EXECUTIVE DIRECTOR OF THE INFORMATION AND INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF BUREAU OF INVESTIGATION, THE PHILIPPINE
OF THE PHILIPPINE NATIONAL POLICE and THE NATIONAL POLICE, AND THE INFORMATION AND
DIRECTOR OF THE NATIONAL BUREAU OF COMMUNICATIONS TECHNOLOGY OFFICE-
INVESTIGATION, respondents. DEPARTMENT OF SCIENCE AND TECHNOLOGY,
G.R. No. 203299. April 22, 2014.* respondents.
LOUIS “BAROK” C. BIRAOGO, petitioner, vs. NATIONAL G.R. No. 203391. April 22, 2014.*
BUREAU OF INVESTIGATION and PHILIPPINE HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO,
NATIONAL POLICE, respondents. VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
G.R. No. 203306. April 22, 2014.* KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN,
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG ISABELLE THERESE BAGUISI OF THE NATIONAL
MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, UNION OF STUDENTS OF THE PHILIPPINES, ET AL.,
BERTENI “TOTO” CAUSING, HERNANI Q. CUARE, petitioners, vs.PAQUITO N. OCHOA, JR., in his capacity as
PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, Executive Secretary and alter-ego of President Benigno
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Simeon Aquino III, LEILA DE LIMA in her capacity as
petitioners, vs.OFFICE OF THE PRESIDENT, represented Secretary of Justice, respondents.
by President Benigno Simeon Aquino III, SENATE OF THE G.R. No. 203407. April 22, 2014.*
PHILIPPINES, and HOUSE OF REPRESENTATIVES, BAGONG ALYANSANG MAKABAYAN SECRETARY
respondents. GENERAL RENATO M. REYES, JR., National Artist
G.R. No. 203359. April 22, 2014.* BIENVENIDO L. LUMBERA, Chairperson of Concerned
SENATOR TEOFISTO DL GUINGONA III, Artists of
petitioner, vs.EXECUTIVE SECRETARY, THE 111the Philippines, ELMER C. LABOG, Chairperson of
SECRETARY OF JUS- Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary
_______________ General of Karapatan, FERDINAND R. GAITE, Chairperson
* EN BANC. of COURAGE, JOEL B. MAGLUNSOD, Vice President of
110TICE, THE
SECRETARY OF THE DEPARTMENT OF Anakpawis Party-List, LANA R. LINABAN, Secretary
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF General Gabriela Women’s Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA MATIBAG, petitioners, vs. THE EXECUTIVE SECRETARY, THE
petitioners, vs. BENIGNO SIMEON C. AQUINO III, SECRETARY OF JUSTICE, THE SECRETARY OF THE
President of the Republic of the Philippines, PAQUITO N. INTERIOR AND LOCAL GOVERNMENT, THE
OCHOA, JR., Executive Secretary, SENATE OF THE SECRETARY OF BUDGET AND MANAGEMENT, THE
PHILIPPINES, represented by SENATE PRESIDENT JUAN DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL
PONCE ENRILE, HOUSE OF REPRESENTATIVES, POLICE, THE DIRECTOR OF THE NATIONAL BUREAU
represented by SPEAKER FELICIANO BELMONTE, JR., OF INVESTIGATION, THE CYBERCRIME
LEILA DE LIMA, Secretary of the Department of Justice, INVESTIGATION AND COORDINATING CENTER, AND
LOUIS NAPOLEON C. CASAMBRE, Executive Director of ALL AGENCIES AND INSTRUMENTALITIES OF
the Information and Communications Technology Office, GOVERNMENT AND ALL PERSONS ACTING UNDER
NONNATUS CAESAR R. ROJAS, Director of the National THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
Bureau of Investigation, D/GEN. NICANOR A. RELATION TO THE IMPLEMENTATION OF REPUBLIC
BARTOLOME, Chief of the Philippine National Police, ACT NO. 10175, respondents.
MANUEL A. ROXAS II, Secretary of the Department of the G.R. No. 203454. April 22, 2014.*
Interior and Local Government, respondents. PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES,
G.R. No. 203440. April 22, 2014.* petitioners, vs. THE HON. SECRETARY OF JUSTICE, THE
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, HON. SECRETARY OF INTERIOR AND LOCAL
AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GOVERNMENT, respondents.
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN G.R. No. 203469. April 22, 2014.*
(all of the Ateneo Human Rights Center), ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
petitioners, vs. HONORABLE PAQUITO OCHOA in his BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
capacity as Executive Secretary, HONORABLE LEILA DE RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V.
LIMA in her capacity as Secretary of Justice, HONORABLE ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
MANUEL ROXAS in his capacity as Secretary of the P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO
Department of Interior and Local Government, The CHIEF of T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A.
the Philippine National Police, The DIRECTOR of the HERMI-
National Bureau of Investigation (all of the Executive 113TANIO; KRISTINE JOY S. REMENTILLA; MARICEL O.
Department of Government), respondents. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU;
112 CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B.
G.R. No. 203453. April 22, 2014.* LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS,
NATIONAL UNION OF JOURNALISTS OF THE INC. COORDINATOR PEDRO E. RAHON;
PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE petitioners, vs. HIS EXCELLENCY BENIGNO S. AQUINO
(PPI), CENTER FOR MEDIA FREEDOM AND III, in his capacity as President of the Republic of the
RESPONSIBILITY, ROWENA CARRANZA PARAAN, Philippines; SENATE OF THE PHILIPPINES, represented
MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN by HON. JUAN PONCE ENRILE, in his capacity as Senate
ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN President; HOUSE OF REPRESENTATIVES, represented by
THE e-PETITION http://www.nujp.org/no-to-ra10175/, FELICIANO R. BELMONTE, JR., in his capacity as Speaker
of the House of Representatives; HON. PAQUITO N. OCHOA, DEPARTMENT OF BUDGET AND MANAGEMENT AND
JR., in his capacity as Executive Secretary; HON. LEILA M. ALL OTHER GOVERNMENT INSTRUMENTALITIES
DE LIMA, in her capacity as Secretary of Justice; HON. WHO HAVE HANDS IN THE PASSAGE AND/OR
LOUIS NAPOLEON C. CASAMBRE, in his capacity as IMPLEMENTATION OF REPUBLIC ACT 10175,
Executive Director, Information and Communications respondents.
Technology Office; HON. NONNATUS CAESAR R. ROJAS, G.R. No. 203518. April 22, 2014.*
in his capacity as Director, National Bureau of Investigation; PHILIPPINE INTERNET FREEDOM ALLIANCE, composed
and P/DGEN. NICANOR A. BARTOLOME, in his capacity as of DAKILA-PHILIPPINE COLLECTIVE FOR MODERN
Chief, Philippine National Police, respondents. HEROISM, represented by Leni Velasco, PARTIDO LAKAS
G.R. No. 203501. April 22, 2014.* NG MASA, represented by Cesar S. Melencio, FRANCIS
PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs. HIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA
EXCELLENCY BENIGNO S. AQUINO III, in his official TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-
capacity as President of the Republic of the Philippines; HON. DADO, IMELDA MORALES, JAMES MATTHEW B.
PAQUITO N. OCHOA, JR., in his official capacity as MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
Executive Secretary; HON. LEILA M. DE LIMA, in her VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN
official capacity as Secretary of Justice; LOUIS NAPOLEON DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE
C. CASAMBRE, in his official capacity as Executive Director, CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E.
Information and Communications Technology Office; OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS,
NONNATUS CAESAR R. ROJAS, in his official capacity as KENNETH KENG, ANA ALEXANDRA C. CASTRO,
Director of the National Bureau of Investigation; and petitioners, vs. THE EXECUTIVE SECRETARY, THE
DIRECTOR GENERAL NICANOR A. BARTOLOME, in his SECRETARY OF JUS-
official capacity as Chief of the Philippine National Police, 115TICE, THE SECRETARY OF INTERIOR AND LOCAL
respondents. GOVERNMENT, THE SECRETARY OF SCIENCE AND
114 TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
G.R. No. 203509. April 22, 2014.* INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR
BAYAN MUNA REPRESENTATIVE NERI J. OF THE NATIONAL BUREAU OF INVESTIGATION, THE
COLMENARES, petitioner, vs. THE EXECUTIVE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF
SECRETARY PAQUITO OCHOA, JR., respondent. THE DOJ OFFICE OF CYBERCRIME, and THE OTHER
G.R. No. 203515. April 22, 2014.* MEMBERS OF THE CYBERCRIME INVESTIGATION AND
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. COORDINATING CENTER, respondents.
represented by BENNY D. ANTIPORDA in his capacity as Criminal Law; Cybercrime Law; Penalties; Section 6 of the
President and in his personal capacity, cybercrime law imposes penalties that are one degree higher when
petitioner, vs. OFFICE OF THE PRESIDENT, PRES. the crimes defined in the Revised Penal Code and certain special
BENIGNO SIMEON AQUINO III, DEPARTMENT OF laws are committed with the use of information and communication
technologies (ICT).—Section 6 of the cybercrime law imposes
JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
penalties that are one degree higher when the crimes defined in the
GOVERNMENT, PHILIPPINE NATIONAL POLICE,
Revised Penal Code and certain special laws are committed with
NATIONAL BUREAU OF INVESTIGATION, the use of information and communication technologies (ICT). Some
of the petitioners insist that Section 6 is invalid since it produces Constitutional Law; Freedom of Speech; Freedom of the Press;
an unusual chilling effect on users of cyberspace that would hinder As long as the expression or speech falls within the protected sphere,
free expression. it is the solemn duty of courts to ensure that the rights of the people
Same; Same; Compared to traditional crimes, cybercrimes are are protected.—The constitutional guarantee against prior restraint
more perverse; Cybercriminals enjoy the advantage of anonymity, and subsequent punishment, the jurisprudential requirement of
like wearing a mask during a heist.—Compared to traditional “actual malice,” and the legal protection afforded by “privilege
crimes, cybercrimes are more perverse. In traditional estafa for communications” all ensure that protected speech remains to be
example, the offender could reach his victim only at a particular protected and guarded. As long as the expression or speech falls
place and a particular time. It is rare that he could consummate his within the protected sphere, it is the solemn duty of courts to ensure
crime without exposing himself to detection and prosecution. Fraud that the rights of the people are protected.
online, however, crosses national boundaries, generally depriving Criminal Law; Cybercrime Law; Cyberlibel; Online libel is not
its victim of the means to obtain reparation of the wrong done and a new crime. It is essentially the old crime of libel found in the 1930
seek prosecution and punishment of the absent criminal. Revised Penal Code and transposed to operate in the cyberspace.
Cybercriminals enjoy the advantage of anonymity, like wearing a Consequently, the mass of jurisprudence that secures the freedom of
mask during a heist. expression from its reach applies to online libel.—The movants
Same; Prescription of Crimes; Prescription is not a matter of argue that Section 4(c)(4) is both vague and overbroad. But, again,
procedure over which the Court has something to say. Rather, it is online libel is not a new crime. It is essentially the old crime of libel
substantive law since it assumes the existence of an authority to found in the 1930 Revised Penal Code and transposed to operate in
punish a wrong, which authority the Constitution vests in Congress the cyberspace. Consequently, the mass of jurisprudence that
alone.—Prescription is not a matter of procedure over which the secures the freedom of expression from its reach applies to online
Court has something to say. Rather, it is substantive law since it libel. Any
assumes the existence of an authority to punish a wrong, which 117apprehended vagueness in its provisions has long been
116authority the Constitution vests in Congress alone. Thus, settled by precedents.
there is no question that Congress may provide a variety of periods Sereno, CJ., Dissenting and Concurring Opinion:
for the prescription of offenses as it sees fit. What it cannot do is Constitutional Law; Freedom of Speech; View that freedom of
pass a law that extends the periods of prescription to impact crimes speech is the nucleus of other rights. That is why it is the first right
committed before its passage. that is curtailed when a free society falls under a repressive regime.
Same; Libel; Libel, like obscenity, belongs to those forms of That is also why the Supreme Court has acknowledged freedom of
speeches that have never attained Constitutional protection and are speech as occupying a preferred position in the hierarchy of rights.—
considered outside the realm of protected freedom.—The majority of I maintain my dissent insofar as the application of Section 6 to libel
the movants believe that the Court’s decision upholding the is concerned because the one degree higher penalty it imposes
constitutionality of Section 4(c)(4), which penalizes online libel, creates a chilling effect on the exercise of free speech. Hence, while
effectively tramples upon the right to free expression. But libel is a solitary sentence to that effect would have sufficed, I respectfully
not a protected speech. There is no freedom to unjustly destroy the but vigorously reassert my dissent, considering the far-reaching
reputation of a decent woman by publicly claiming that she is a paid effects of Section 6 on the lives and liberty of the Filipino people.
prostitute. As early as 1912, the Court held that libel is a form of Freedom of speech is the nucleus of other rights. That is why it is
expression not protected by the Constitution. Libel, like obscenity, the first right that is curtailed when a free society falls under a
belongs to those forms of speeches that have never attained repressive regime. That is also why this Court has acknowledged
Constitutional protection and are considered outside the realm of freedom of speech as occupying a preferred position in the hierarchy
protected freedom. of rights.
Criminal Law; Penalties; View that penal statutes cannot be minimum period (from 6 years and 1 day to 8 years). Therefore,
facially invalidated on the ground that they produce a “chilling Section 6 doubles the maximum penalty for online libel.
effect,” since they are intended to have an in terrorem effect to deter Same; Same; Same; Same; Same; Same; View that Section 6
criminality. However, when a law provides for a penalty that goes effectively creates an additional in terrorem effect by introducing
beyond the in terrorem effect needed to deter crimes and impedes the information and communication technologies (ICT) as a qualifying
exercise of freedom of speech, it should be quashed at once without aggravating circumstance.—Section 6 effectively creates an
hesitation.—As a general rule, penal statutes cannot be facially additional in terroremeffect by introducing ICT as a
invalidated on the ground that they produce a “chilling effect,” since qualifying aggravating circumstance. This burden is imposed
they are intended to have an in terrorem effect to deter criminality. on top of the intended in terrorem effect of the original penalties
However, when a law provides for a penalty that goes beyond imposed by the Revised Penal Code. Thus, the public will now have
the in terrorem effect needed to deter crimes and impedes to take this additional burden into account in their calculation of
the exercise of freedom of speech, it should be quashed at penalties. As if the need to weigh the costs and benefits of whether
once without hesitation. As I previously demonstrated, the to exercise freedom of speech is not burdened enough by the
increase in penalty under this seemingly innocuous provision of possibility of a libel suit, the public will now have to additionally
Section 6, insofar as it is applied to libel, indirectly but absolutely mull over their use of ICT in the exercise of this freedom through
results in chilling the right of the people to free speech and ICT.
expression. Therefore, it is unconstitutional. 119
118 Same; Same; Same; Same; Same; Same; View that before the
Same; Same; Cyberlibel; Cybercrime Prevention Act of 2012; Cybercrime Prevention Act, the imposable penalty for libel under
Qualifying Aggravating Circumstances; Information and Art. 355 of the Revised Penal Code, even if committed by means of
Communication Technologies (ICT); View that Section 6 of the information and communication technologies (ICT), was prisión
Cybercrime Prevention Act introduces the use of ICT as a qualifying correccional in its minimum and medium periods. Now, under
aggravating circumstance; Section 6 doubles the maximum penalty Section 6 of the Cybercrime Prevention Act, the imposable penalty
for online libel.—Section 6 of the Cybercrime Prevention Act for libel qualified by ICT has been increased to prisión correccional
introduces the use of ICT as a qualifying aggravating circumstance, in its maximum period to prisión mayor in its minimum period.—
thusly: SEC. 6. All crimes defined and penalized by the Revised Before the Cybercrime Prevention Act, the imposable penalty for
Penal Code, as amended, and special laws, if committed by, libel under Art. 355 of the Revised Penal Code, even if committed
through and with the use of information and by means of ICT, was prisión correccional in its minimum and
communications technologies shall be covered by the relevant medium periods. Now, under Section 6 of the Cybercrime
provisions of this Act:Provided, That the penalty to be imposed Prevention Act, the imposable penalty for libel qualified by ICT has
shall be one (1) degree higher than that provided for by the been increased to prisión correccional in its maximum period
Revised Penal Code, as amended, and special laws, as the case to prisión mayor in its minimum period. Consequently, it is now
may be. (Emphases supplied) Article 355 of the Revised Penal Code, possible for the harsher accessory penalties for prisión mayor to
provides for libel the penalty of prisión correccional in its minimum attach. These are: the deprivation of public offices and employments
(from 6 months and 1 day to 2 years and 4 months) and medium even if conferred by popular election, the deprivation of the right to
(from 2 years, 4 months, and 1 day to 4 years and 2 months) periods. vote, disqualification from offices or public employments and the
However, with the increase in penalty by one degree under forfeiture of retirement pay. Undeniably, public office and
the Cybercrime Prevention Act, libel qualified by the use of ICT is employment as well as the right to vote, and retirement pay are not
now punishable by prisión correccional in its maximum period trifling privileges that one can easily risk losing. Hence, the public
(from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its will now have to factor in these severe consequences into their
calculations. The exercise of freedom of speech through ICT is Same; Same; Cybercrime Prevention Act of 2012; Freedom of
thereby further burdened. Speech; View that it is not difficult to see how Section 6 subjugates
Same; Same; Same; Same; Same; Same; View that when this freedom of speech through its combined effects — longer prison
very beneficial technology is made a qualifying aggravating terms, harsher accessory penalties, loss of benefits under the
circumstance that guarantees imprisonment, the in terrrorem effect Probation Law, extended prescription periods, and ineligibility of
of libel is further magnified and becomes unduly oppressive to the these penalties to be offset by mitigating circumstances.—A
exercise of free speech.—Given the basic postulate animating our qualifying aggravating circumstance like the use of ICT increases
penal laws that humans are calculating beings who weigh the perils the penalty by degrees, not by period as a generic aggravating
of their actions, it is possible that people may risk a conviction for circumstance does. Moreover, while a generic aggravating
libel, since they may avail themselves of the privilege of probation. circumstance may be offset by a generic mitigating circumstance
They may find that the exercise of their freedom to speak and to such as voluntary surrender, a qualifying aggravating
express themselves is worth the threat. But when this very circumstance is more onerous in that it cannot be similarly offset.
beneficial technology is made a qualifying aggravating Hence, since Section 6 now punishes the offender with a higher
circumstance that guarantees imprisonment, the in range of penalty — prisión correccional in its maximum period
terrrorem effect of libel is further magnified and becomes (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its
unduly oppressive to the exercise of free minimum period (from 6 years and 1 day to 8 years) — the period
speech. Furthermore, it should be noted that offenders will now of imprisonment will remain within this higher and harsher
lose the additional benefit of probation — the suspension of range. It is not difficult to see how Section 6 subjugates
accessory penalties. freedom of speech through its combined effects — longer
120 prison terms, harsher accessory penalties, loss of benefits
Same; Cyberlibel; Prescription of Crimes; View that while a under the Probation Law, extended prescription periods,
charge for ordinary libel may be filed within the limited period of and ineligibility of these penalties to be offset by mitigating
only one year from its commission, the charge for online libel can be circum-
instituted within 15 years since under Article 90 that is the 121stances. We cannot turn a blind eye to this and turn our
prescription period for crimes punishable by afflictive penalties, backs on the Filipino people. I am convinced more than ever of the
other than reclusion perpetua and reclusion temporal.—Before the unconstitutionality of Section 6, as far as libel is concerned.
passage of the Cybercrime Prevention Act, the State waives its right Same; Same; Same; Qualifying Aggravating Circumstances;
to prosecute libel after only one year. With the increase in penalty Information and Communication Technologies; View that the mere
by one degree pursuant to Section 6 of the Cybercrime Prevention use of Information and Communication Technologies (ICT) by itself
Act, however, the penalty for libel through ICT should not automatically make it aggravating. It has to be purposely
becomes afflictive under Article 25 of the Revised Penal Code. sought to facilitate the crime, maximize damage or ensure
Accordingly, while a charge for ordinary libel may be filed within impunity.—The mere use of ICT by itself should not
the limited period of only one year from its commission, the charge automatically make it aggravating. It has to be purposely
for online libel can be instituted within 15 years since under Article sought to facilitate the crime, maximize damage or ensure
90 that is the prescription period for crimes punishable by afflictive impunity. It must be established that the otherwise beneficial
penalties, other than reclusion perpetua and reclusion temporal. nature of ICT was selected and intentionally sought, deliberately
This is not a trivial matter since, in effect, the threat of prosecution and consciously adopted to advance the perpetration of the
for online libel lingers for 14 years more. Similarly, the prescription crime. That is the only way to attribute greater perversity on
period for the penaltyof libel through ICT is increased from 10 to 15 the part of the offender in using ICT and to justify the
years. imposition of a penalty one degree higher. If there is no such
intent, there can be no aggravation. If the mind is innocent be truly defended as a right with a preferred position in the
as to the adoption of a particular means, there can be no hierarchy of rights, its online exercise should also be vigorously
aggravating circumstance. This malicious intent, like the protected.
elements of the crimes itself, must be proven beyond reasonable
doubt. If not so proven, the ICT cannot qualify the crime, and the Brion, J., Dissenting Opinion:
criminal cannot be penalized one degree higher. Criminal Law; Libel; View that jurisprudence has long settled
Same; Same; Same; Same; Same; View that it is puzzling that that libel is not protected speech, and that Congress, in the exercise
the Supreme Court is willing to uphold commercial speech than the of its power to define and penalize crimes, may validly prohibit its
preferred right to free speech of citizens.—We cannot be complacent. utterance.—At the outset, allow me to clarify that I do not think
The very fabric of our democratic society is in danger of being slowly that libel per se is unconstitutional; neither is its application
torn apart. The Court staunchly defended the right to commercial in communications made through ICT violative of the
speech of advertisers by declaring unconstitutional Section 4(c)(3) Constitution. Jurisprudence has long settled that libel is not
which simply regulates the sending of unsolicited commercial protected speech, and that Congress, in the exercise of its power to
communications even as it admits that commercial speech is not define and penalize crimes, may validly prohibit its
accorded the same level of protection as that given to other utterance. Increasing the penalty of libel when committed through
constitutionally guaranteed forms of expression. On the other hand, ICT, however, is another matter. I submit that Section 6 of the
it does not give the same steadfast protection for freedom of speech Cybercrime Law, insofar as it qualifies the crime of libel, violates
which Section 6 clearly chills. Hence, it is puzzling that the Court freedom of speech because it unduly increases the prohibitive effect
is willing to uphold commercial speech than the preferred right to of libel law on online speech. My reasons are twofold: first, I do not
free speech of citizens. believe that there is sufficient distinction between libelous speech
Same; Same; Same; View that the majority’s insistence that committed online and speech uttered in the real, physical world to
Section 4(c)(4) of the Cybercrime Prevention Act cannot be imple- warrant increasing the prohibitive impact of penal law in
122mented without at the same time imposing the higher cyberlibel. Second, the increase in the penalty of libel when
penalty provided by Section 6 — with its invidious chilling effects — committed through computer systems can have
constrains me to hold that Section 4(c)(4) is wholly unconstitutional 123the effect of imposing self-censorship in the Internet and of
as well.—I had earlier voted with the majority to uphold Section curtailing an otherwise robust avenue for debate and discussion on
4(c)(4) on cyberlibel — save for its application to those who merely public issues. In other words, over-penalizing online speech could
react to a libelous post — on the presumption that Section 6, which overreach into matters other than libelous and can thus prevent
imposes a one degree higher penalty on crimes committed using protected speech from being uttered.
ICT, would be declared unconstitutional insofar as it is applied to Same; Cyberlibel; Freedom of Speech; View that increasing the
cyberlibel. However, in view of the ultimate ruling of the majority penalty of cyberlibel could curtail speech in the Internet.—The
affirming the constitutionality of Section 6, I consequently conclude publicity element of libel in the Revised Penal Code does not take
that Section 4(c)(4) is wholly unconstitutional. The invalidation of into consideration the amount of audience reached by the
Section 6 would have removed the heavy burden on free speech defamatory statement. Libelous speech may be penalized when, for
exercised online. Indeed, Section 6 is completely incompatible with instance, it reaches a third person by mail, or through a television
free speech. To reiterate, the majority’s insistence that Section program, or through a newspaper article published nationwide. All
4(c)(4) cannot be implemented without at the same time imposing these defamatory imputations are punishable with the same
the higher penalty provided by Section 6 — with its invidious penalty of prision correccional in its minimum and medium periods
chilling effects discussed above — constrains me to hold that or a fine ranging from 200 to 6,000 pesos or both. I do not see any
Section 4(c)(4) is wholly unconstitutional as well. If free speech is to reason why libel committed through ICT should be treated in a
harsher manner. I submit that we cannot rule on the basis of of 2012 is a swing towards lesser protection of the primordial right
extreme, outlying situations, especially since, as I would explain in to speech.—The majority now condones the same 1930s text
my succeeding discussion, increasing the penalty of cyberlibel could definition of libel effectively discarding the carefully crafted
curtail speech in the Internet. If we must err in this decision, we exception painstakingly built from the assertion of fundamental
must err on the side of protecting freedom of speech, a fundamental rights in this court. This condonation reveals the legislative
right ranking high in the value of constitutional freedoms, so blinders to the radically different context of the internet. The text
cherished because it is crucial to the functioning of a working of Section 4(c)(4) of the Cybercrime Prevention Act of 2012 is a
democracy. swing towards lesser protection of the primordial right to speech.
Same; Same; Electronic Violence; Words and Phrases; View The position taken by the majority deserves a second hard look, if
that Electronic Violence has been defined as any act involving the only to ensure the constitutional guarantee that our people truly
exploitation of data that “can cause or is likely to cause mental, have freedom of expression as a means to assert their sovereignty
emotional and psychological distress or suffering to the victim.”—As and governmental authority in cyberspace.
a final point in the matter, I note that despite the Cybercrime Law’s Same; Same; Cyberlibel; View that criminal libel has an in
passage, bills punishing cyber-bullying and electronic violence have terrorem effect that is inconsistent with the contemporary protection
been filed in Congress. As filed, the bills penalize cyber-bullying, or of the primordial and necessary right of expression enshrined in our
the act of using social media to “harm or harass other people in a Constitution.—The chilling effect on various types of speech with
deliberate, repeated and hostile manner.” Electronic Violence, on just the possibility of criminal libel prosecution compared with the
the other hand, has been defined as any act involving the consequences of civil liabilities for defamation presents another
exploitation of data that “can cause or is likely to cause mental, dimension that have been glossed over by the main opinion and the
emotional and psychological distress or suffering to the victim.” To resolution on the various motions for reconsideration. We have to
my mind, these bills represent Congress’ intent to penalize the acknowledge the real uses of criminal libel if we are to be consistent
extreme situation that the ponencia contemplates; at most, these to protect speech made to make public officers and government
bills are a recognition that cyberlibel has not been intended to cover accountable. Criminal libel has an in terrorem effect that is
such extreme situation, but only to recognize and clarify that the inconsistent with the contemporary protection of the primordial
crime of libel may be committed through computer systems. and neces-
124 125sary right of expression enshrined in our Constitution. The
Leonen, J., Dissenting Opinion: history and actual use of criminal libel should be enough for us to
Criminal Law; Libel; View that it is not enough that we take a second look at the main opinion in this case. The review
proclaim, as the majority does, that libel is unprotected speech.—It should include a consideration of the nature of cyberspace as
is not enough that we proclaim, as the majority does, that libel is layered communities used to evolve ideas. Such review should
unprotected speech. The ponencia’s example, i.e., “[t]here is no result in a declaration of unconstitutionality of criminal libel in the
freedom to unjustly destroy the reputation of a decent woman by Revised Penal Code and in the Cybercrime Prevention Act of 2012.
publicly claiming that she is a paid prostitute,” fails to capture the Same; Same; View that the Cybercrime Prevention Act of 2012
nuances of criminalizing libel in our jurisprudence and in reality. It does not prohibit advertising. It simply requires that whoever
is a precarious simplification of the issue inferred from one advertises must be accountable to the user, not use false identities
imagined case. This obfuscation practically neuters the ability of and allow for opt out mechanisms so that the user will not continue
this court to do incisive analysis in order to provide the necessary to receive unwelcome advertising ad nauseum.—I view the current
protection to speech as it applies to the internet. provisions as sufficiently narrow and tailored to meet legitimate
Same; Cybercrime Prevention Act of 2012; Freedom of Speech; and compelling state interests. It protects the ordinary internet
View that the text of Section 4(c)(4) of the Cybercrime Prevention Act user against unwarranted intrusions. Certainly, freedom of
expression should not evolve into a fundamental and protected Rodel A. Cruz, Rico A. Limpingco, Arthur Anthony S. Alicer
right to badger. The Cybercrime Prevention Act of 2012 does not and Michelle Anne S. Lapuz for petitioner in G.R. No. 203501.
prohibit advertising. It simply requires that whoever advertises Edsel F. Tupaz and Neri J. Colmenares for petitioner in
must be accountable to the user, not use false identities and allow G.R. No. 203509.
for opt out mechanisms so that the user will not continue to receive
Michael J. Mella and Bobby Gaytos for petitioner in G.R.
unwelcome advertising ad nauseum.
No. 203515.
MOTIONS FOR RECONSIDERATION of a decision of the
John Paolo A. Villasor, Renecio S. Espiritu, Jr. and Kelvin
Supreme Court.
Lester K. Lee for petitioners in G.R. No. 203518.
The facts are stated in the resolution of the Court.
Sheryl L. Olaño for R.V. Quevedo and W.H. Torres.
Jose Jesus M. Disini, Jr., Rowena S. Disini and Lianne Ivy
John Paolo Roberto L.A. Villasor for petitioner Noemi
Pascua-Medina for petitioners in G.R. No. 203335.
Lardizabal-Dado.
Victor C. Avecilla for petitioner Louis “Barok” C. Biraogo in
Juan Alfonso P. Torrevillas for petitioners-in-intervention
G.R. No. 203299.
Ephraim Hans Manzano Ocampo, et al.
Berteni Cataluna Causing, Cirilo P. Sabarre, Jr. and
127
Dervin V. Castro for petitioners in G.R. No. 203306.
Teofisto DL Guingona III, Dante Xenon B. Atienza, Alex O. RESOLUTION
Avisado, Jr., Raymond M. Cajucom, Ronald Michel R. Ubaña,
Maria Cristina B. Garcia-Ramirez, Rose Anne P. Rosales, ABAD, J.:
Herbert Matienzo and Rhenelle Mae Operario for petitioner in A number of petitioners seek reconsideration of the Court’s
G.R. No. 203359. February 18, 2014 Decision that declared invalid and
126 unconstitutional certain provisions of Republic Act 10125 or
H. Harry L. Roque, Jr., Romel Regalado Bagares and the Cybercrime Prevention Act of 2012 and upheld the
Gilbert Teruel Andres for petitioners in G.R. No. 203378. validity of the others. The respondents, represented by the
James Mark Terry L. Ridon for petitioners in G.R. No. Office of the Solicitor General, also seek reconsideration of
203391. portions of that decision. After going over their motions,
Julius Garcia Matibag, Carlos Isagani T. Zarate, Gregorio however, the Court sees no substantial arguments from either
Y. Fabros, Maria Cristina P. Yambot and Minerva F. Lopez for side to warrant the reversal of its February 18, 2014 Decision.
petitioners in G.R. No. 203407. The point about the legislative bicameral committee’s
Melencio Sta. Maria, Sedfrey M. Candelaria, Amparito insertions of certain provisions that were neither in the House
Delos Santos-Sta. Maria, Gilbert V. Sembrano, Ryan bill nor in the Senate bill is something that the Court is not
Jeremiah D. Quan, Maria Patricia R. Cervantes, Ray Paolo J. inclined to investigate since insertions are within the power
Santiago and Nina Patricia D. Sison-Arroyo for petitioners in of those committees to make so long as the passage of the law
G.R. No. 203440. complies with the constitutional requirements.1 The
Ricardo Sunga for all petitioners in G.R. No. 203453. Cybercrime Prevention Act went through both houses and
Paul Cornelius T. Castillo and Ryan D. Andres for they approved it. Any issue concerning alleged noncompliance
petitioners in G.R. No. 203454. with the governing rules of both houses regarding committee
Kristoffer James E. Purisima for petitioners in G.R. No. insertions have to be internally resolved by each house.
203469.
In any event, the Court will briefly address certain aspects The United Nations Special Rapporteur,4 Frank La Rue,
of the decision that drew the most objections. acknowledged the material distinction. He pointed out that
Section 6 of the cybercrime law imposes penalties that are “[t]he vast potential and benefits of the Internet are rooted in
one degree higher when the crimes defined in the Revised its unique characteristics, such as its speed, worldwide reach
Penal Code and certain special laws are committed with the and relative anonymity.” For this reason, while many
use of information and communication technologies (ICT). governments advocate freedom online, they recognize the
Some of the petitioners insist that Section 6 is invalid since it neces-
produces an unusual chilling effect on users of cyberspace that _______________
would hinder free expression. 2 Motion for Reconsideration, p. 2357.
_______________ 3 AN ACT PROVIDING AND USE OF ELECTRONIC COMMERCIAL AND
1 Tatad v. The Secretary of the Department of Energy, 346 Phil. 321; 281 NON-COMMERCIAL TRANSACTIONS, PENALTIES FOR UNLAWFUL USE
SCRA 330 (1997), citing Tolentino v. Secretary of Finance, G.R. Nos. 115455, THEREOF, AND OTHER PURPOSES, Republic Act 8792, June 14, 2000.
115525, 115543, 115544, 115754, 115781, 115852, 115873 & 115931, August 4 Special Rapporteur on the promotion and protection of the
25, 1994, 235 SCRA 630.
128
right to freedom of opinion and expression.
129sity to regulate certain aspects of the use of this media to
Petitioner Bloggers and Netizens for Democracy insist that
Section 6 cannot stand in the absence of a definition of the protect the most vulnerable.5
term “information and communication technology.”2 But Not infrequently, certain users of the technology have
petitioner seems to forget the basic tenet that statutes should found means to evade being identified and for this reason have
not be read in isolation from one another. The parameters of been emboldened to reach far more victims or cause greater
that ICT exist in many other laws. Indeed those parameters harm or both. It is, therefore, logical for Congress to consider
have been used as basis for establishing government systems as aggravating the deliberate use of available ICT by those
and classifying evidence.3 These along with common usage who ply their wicked trades.
provide the needed boundary within which the law may be Compared to traditional crimes, cybercrimes are more
applied. perverse. In traditional estafa for example, the offender could
The Court had ample opportunity to consider the reach his victim only at a particular place and a particular
proposition that Section 6 violates the equal protection clause time. It is rare that he could consummate his crime without
via the parties’ pleadings, oral arguments, and memoranda. exposing himself to detection and prosecution. Fraud online,
But, as the Decision stressed, the power to fix the penalties however, crosses national boundaries, generally depriving its
for violations of penal laws, like the cybercrime law, victim of the means to obtain reparation of the wrong done
exclusively belongs to Congress. and seek prosecution and punishment of the absent criminal.
In any event, Section 6 of the cybercrime law merely makes Cybercriminals enjoy the advantage of anonymity, like
the commission of existing crimes through the internet a wearing a mask during a heist.
qualifying circumstance that raises by one degree the Petitioners share the Chief Justice’s concern for the overall
penalties corresponding to such crimes. This is not at all impact of those penalties, being one degree higher than those
arbitrary since a substantial distinction exists between crimes imposed on ordinary crimes, including the fact that the pre-
_______________
committed through the use of ICT and similar crimes 5 La Rue accepts that “legitimate types of information … may be restricted
committed using conventional means. [such as] child pornography (to protect the rights of children), hate speech (to
protect the rights of affected communities), defamation (to protect the rights 6 Philippine Bar Association, Motion for Reconsideration, p. 2397;
and reputation of others against unwarranted attacks), direct and public Bloggers and Netizens for Democracy, Motion for Reconsideration, p. 2362.
incitement to commit genocide (to protect the rights of others), and advocacy 7 People of the Philippine Islands v. Parel, No. L-18260, January 27, 1923,
of national, racial or religious hatred that constitutes incitement to citing Fiore, Irretroactividad e Interpretacion de las Leyes, pp. 426-428.
discrimination, hostility or violence (to protect the rights of others, such as the 131
right to life).” (Citations omitted) (A/HRC/17/27, p. 8); seeMaria Luisa Isabel As early as 1912, the Court held that libel is a form of
L. Rosales, Today the Internet, Tomorrow Cable TV?: Situating the Internet
as a Human Right, 57 ATENEO L.J. 463, 484-85 (2012).
expression not protected by the Constitution.8 Libel, like
130scriptive periods for the equivalent cybercrimes have
obscenity, belongs to those forms of speeches that have never
become longer.6 attained Constitutional protection and are considered outside
Prescription is not a matter of procedure over which the the realm of protected freedom. As explained by the US
Court has something to say. Rather, it is substantive law since Supreme Court in Champlinsky v. New Hampsire:9
Allowing the broadest scope to the language and purpose of the
it assumes the existence of an authority to punish a wrong,
Fourteenth Amendment, it is well understood that the right of free
which authority the Constitution vests in Congress alone. speech is not absolute at all times and under all circumstances.
Thus, there is no question that Congress may provide a There are certain well-defined and narrowly limited classes of
variety of periods for the prescription of offenses as it sees fit. speech, the prevention and punishment of which have never been
What it cannot do is pass a law that extends the periods of thought to raise any Constitutional problem. These include the
prescription to impact crimes committed before its passage.7 lewd and obscene, the profane, the libelous, and the insulting or
It is pointed out that the legislative discretion to fix the “fighting” words — those which, by their very utterance, inflict
penalty for crimes is not absolute especially when this injury or tend to incite an immediate breach of the peace. It has
discretion is exercised in violation of the freedom of been well observed that such utterances are no essential part of any
expression. The increase in the penalty for online libel creates, exposition of ideas, and are of such slight social value as a step to
according to this view, greater and unusual chilling effect that truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. “Resort to
violates the protection afforded to such freedom.
epithets or personal abuse is not in any proper sense
But what the stiffer penalty for online libel truly targets communication of information or opinion safeguarded by the
are those who choose to use this most pervasive of media Constitution, and its punishment as a criminal act would raise no
without qualms, tearing down the reputation of private question under that instrument.” (Emphasis supplied)
individuals who value their names and community standing. The constitutional guarantee against prior restraint and
The law does not remotely and could not have any chilling subsequent punishment, the jurisprudential requirement of
effect on the right of the people to disagree, a most protected “actual malice,” and the legal protection afforded by “privilege
right, the exercise of which does not constitute libel. communications” all ensure that protected speech remains to
The majority of the movants believe that the Court’s _______________
decision upholding the constitutionality of Section 4(c)(4), 8 Worcester v. Ocampo, 22 Phil. 41 (1912), cited in Bernas, S.J., The 1987
Constitution of the Republic of the Philippines: A Commentary, 3rd ed., Rex
which penalizes online libel, effectively tramples upon the
Book Store, Manila, 2003.
right to free expression. But libel is not a protected speech. 9 315 U.S. 568 (1942), cited in Gorospe, R., Constitutional Law: Notes and
There is no freedom to unjustly destroy the reputation of a Readings on the Bill of Rights, Citizenship and Suffrage, Vol. I, Rex Book
decent woman by publicly claiming that she is a paid Store, Manila, 2006, p. 672.
prostitute.
_______________
132be protected and guarded. As long as the expression or already considered and ruled upon when it promulgated its
speech falls within the protected sphere, it is the solemn duty earlier Decision.
of courts to ensure that the rights of the people are protected. WHEREFORE, the Court DENIES with finality the
At bottom, the deepest concerns of the movants seem to be various motions for reconsideration that both the petitioners
the fact that the government seeks to regulate activities in the and the respondents, represented by the Office of the Solicitor
internet at all. For them, the Internet is a place where General, filed for lack of merit.
everyone should be free to do and say whatever he or she SO ORDERED.
wants. But that is anarchical. Any good thing can be Leonardo-De Castro, Peralta, Bersamin, Del Castillo,
converted to evil use if there are no laws to prohibit such use. Villarama, Jr., Perez and Reyes, JJ., concur.
Indeed, both the United States and the Philippines have Sereno, CJ., See Concurring and Dissenting Opinion.
promulgated laws that regulate the use of and access to the Carpio, J., I vote to declare Section 6 constitutional. I
Internet.10 reiterate my Separate Dissenting and Concurring Opinion.
The movants argue that Section 4(c)(4) is both vague and Velasco, Jr., J., With prior inhibition.
overbroad. But, again, online libel is not a new crime. It is Brion, J., See my Dissent.
essentially the old crime of libel found in the 1930 Revised Mendoza, J., I join the position of CJ. on Section 6 and
Penal Code and transposed to operate in the cyberspace. other positions taken by J. Brion.
Consequently, the mass of jurisprudence that secures the Perlas-Bernabe, J., No part.
freedom of expression from its reach applies to online libel. Leonen, J., See Dissent.
Any apprehended vagueness in its provisions has long been DISSENTING AND CONCURRING OPINION
settled by precedents. SERENO, CJ.:
_______________ Freedoms such as these are protected not only
10 In the Philippines, the following laws were enacted to regulate the
against heavy-handed frontal attack, but also from
access and use of the Internet: Electronic Commerce Act of 2000 (Republic Act
8792), Access Devices Regulation Act (Republic Act 8484) and the Anti- being stifled by more subtle governmental
Bullying Act of 2013 (Republic Act 10627). The United States, on the other interference.
hand, enacted the following laws: (1) to combat Internet fraud: (a) 15 U.S.C. Justice Potter Stewart1
§§ 45, 52 (Unfair or deceptive acts or practices; false advertisements; (b) 18 _______________
U.S.C. §§ 1028, 1029, 1030 (fraud in connection with identification documents 1 Bates v. City of Little Rock, 361 U.S. 516 (1960), as cited in Healy v.
and information; fraud in connection with access devices; and fraud in James, 408 U.S. 169, 280-281 (1972).
connection with computers); and (c) 15 U.S.C. § 1644 (credit card fraud). (2) 134
For Child Pornography, Child Luring and other Related Activities: (a) 18
U.S.C. § 2251 (sexual exploitation and other abuse of children), and (b) 18
Nothing can be more plain and unambiguous than
U.S.C. § 2421 (transportation for illegal sexual activity). See US Federal the Constitutional command that “No law shall be
Cybercrime Laws, retrieved passed abridging the freedom of speech, of expression,
at http://digitalenterprise.org/govemance/us_code.html(last accessed April 3, or of the press, or the right of the people peaceably to
2014).
133
assemble and petition the government for redress of
The parties’ other arguments in their respective motions grievances.” The Constitution’s mantle of protection is not
for reconsideration are mere reiterations that the Court limited to direct interference2 with the right to free speech; it
prohibits anything that as much as subtly chills its exercise.
I maintain my dissent insofar as the application of Section how widespread the misconception is. Failure to do so may
6 to libel is concerned because the one degree higher penalty create and propagate unfounded fears with inevitable adverse
it imposes creates a chilling effect on the exercise of free effects. If the Court takes the time to resolve moot and
speech. Hence, while a solitary sentence to that effect would academic cases when doing so will be instructive to the bar
have sufficed, I respectfully but vigorously reassert my and bench and the public, and when the issues raised are of
dissent, considering the far-reaching effects of Section 6 on paramount public interest,5 all the more should it endeavour
the lives and liberty of the Filipino people. Freedom of speech to allay the concrete fears of the population, no matter how
is the nucleus of other rights. That is why it is the first right absurd, by clarifying and untangling the confusion that
that is curtailed when a free society falls under a repressive caused them. This I will do in relation to the wild conclusions
regime.3 That is also why this Court has acknowledged some parties hold about the nature of ICT in Section 6.
freedom of speech as occupying a preferred position in the I had fervently hoped that this conscientious reiteration of
hierarchy of rights.4 my reasons for asserting the unconstitutionality of Section 6
Unfortunately, the questioned provision was discussed insofar as its application to libel is concerned would have the
only cursorily in the Court’s Decision, — through a single effect of convincing those who take a contrary position —
paragraph, — and again in the resolution of the motions for within and outside of the Court — to reconsider their strongly-
reconsideration, despite the gravity of its consequences. The held position on Section 6. It would be a glimmer of hope
Decision dismissively disposes of the issue by 1) stating that should this reassertion even as much as nudge them slightly
Section 6 operates only to make commissions of crimes to be open to this different view being offered in the
through the Internet a qualifying circumstance; and 2) marketplace of ideas. Incidentally, the marketplace has
substantial distinctions justify a higher penalty for crimes moved into cyberspace which we must now protect, not for its
through information communication technology (ICT). I own sake, but for the vast possibilities for robust exchange of
believe that it is the Court’s constitutional duty to explain to ideas it has opened, especially those pertaining to politics and
the people its decision exhaustively, especially when the issue _______________
5 Province of North Cotabato v. Government of the Republic of the
has broad Philippines Peace Panel on Ancestral Domain (GRP), G.R. Nos. 183591,
_______________
183752, 183893, 183951 & 183962, 14 October 2008, 568 SCRA 402.
2 Healy v. James, 408 U.S. 169, 280 (1972).
3 ISAGANI A. CRUZ, CONSTITUTIONAL LAW, pp. 198-199 (2000). 136governance. ICT has proven to be an ally of democracy.
4 Ayer Productions Ptd. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, 29 Hence, nowhere is the protection of free speech more
April 1988, 160 SCRA 861. imperative than in this ubiquitous medium.
135implications on the national life. Indeed, if the majority I also explain my position on the validity of regulating the
had only thoroughly examined the implications of Section 6, transmission of unsolicited commercial communications
at least as far as its application to libel is concerned, they under Section 4(c)(3). I believe that the regulation prevents
might have seen how the provision subtly but surely harmful conduct that may interfere with an e-mail user’s
endangers the preferred right to free speech. enjoyment of his e-mail. Consequently, the interference may
It is also the Court’s duty to address the confusion that may possibly affect his online exercise of his right to free speech,
have resulted from its Decision when the matter of such free expression and free association, that e-mail services
confusion is raised in a motion for reconsideration. Especially facilitate.
so when several parties raise the issue, since it would show
Urgent need to remove the chilling Our Revised Penal Code is based on the premise that
effect of Section 6 insofar as its ap- humans are rational beings who refrain from criminal acts if
plication to cyberlibel is concerned. threatened with punishment sufficient to outweigh any
The Court had struck down unconstitutional provisions of expected gain in committing the crime.8 This consequence is
the Cybercrime Prevention Act, in the exercise of its duty as the intended in terrorem effect of penal statutes.9 Hence, in
the ultimate guardian of the Constitution. However, it has left their exercise of freedom of speech, people circumspectly
Section 6 completely unscathed. In doing so, the Court would weigh the severity of the punishment if the speech turns out
appear not to have completely slain the beast still poised to to be libelous against the possible benefit to be derived from
attack the right to freedom of speech. Perhaps it is the it.
deceivingly simple and innocuous wording of the provision However, additional in terrorem effect may be validly
that has successfully masked its invidious repercussions. Or created by law to discourage resort to greater perversity in the
perhaps, it is because of the provision’s indirect, rather than commission of a felony. Hence, under the Revised Penal
frontal attack on free speech that has left the majority Code the imposable penalty is increased when there are
unconcerned. Indeed, it is often the quiet and creeping aggravat-
interference upon fundamental rights that succeeds in _______________
6 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
absolutely undermining liberty. It is the Court’s duty to
Council, G.R. No. 178552, 5 October 2010, 632 SCRA 146.
examine and expose to light this hidden peril and rouse the 7 The Philippine Railway Co. v. Geronimo Paredes, 64 Phil. 129 (1936).
complacent from her complacency. 8 RAMON C. AQUINO, THE REVISED PENAL CODE – Vol. I, p. 3 (1961).
I believe that the Court should now closely scrutinize 9 Id., at pp. 8-11.
Section 6 anew if it had failed to do so the first time around. 138ing circumstances showing a greater perversity in the
As a general rule, penal statutes cannot be facially commission of a felony.10
invalidated on the ground that they produce a “chilling effect,” Section 6 of the Cybercrime Prevention Act introduces the
since use of ICT as a qualifying aggravating circumstance, thusly:
137they are intended to have an in terrorem effect6 to deter SEC. 6. All crimes defined and penalized by the Revised Penal
Code, as amended, and special laws, if committed by, through
criminality.7However, when a law provides for a penalty
and with the use of information and communications
that goes beyond the in terrorem effect needed to deter
technologies shall be covered by the relevant provisions of this
crimes and impedes the exercise of freedom of speech, Act: Provided, That the penalty to be imposed shall be one (1)
it should be quashed at once without hesitation. As I degree higher than that provided for by the Revised Penal
previously demonstrated, the increase in penalty under this Code, as amended, and special laws, as the case may be.
seemingly innocuous provision of Section 6, insofar as it is (Emphases supplied)
applied to libel, indirectly but absolutely results in chilling the Article 355 of the Revised Penal Code, provides for libel the
right of the people to free speech and expression. Therefore, it penalty of prisión correccional in its minimum (from 6 months
is unconstitutional. and 1 day to 2 years and 4 months) and medium (from 2 years,
Section 6 creates an additional 4 months, and 1 day to 4 years and 2 months) periods.
in terrorem effect on top of that However, with the increase in penalty by one degree under
already created by Article 355 the Cybercrime Prevention Act, libel qualified by the use of
of the Revised Penal Code. ICT is now punishable by prisión correccional in its maximum
period (from 4 years, 2 months and 1 day to 6 years) to prisión Worse, as will be shown below, this increase in penalty has
mayor in its minimum period (from 6 years and 1 day to 8 domino effects which combine to create a behemoth that
years).21 Therefore, Section 6 doubles the maximum penalty treacherously tramples over freedom of speech — the
for online libel. imposition of harsher accessory penalties, the neutralization
Thus, Section 6 effectively creates an additional in of the full benefits of the law on probation, the increase in the
terroremeffect by introducing ICT as a qualifying prescription periods for the crime of cyberlibel and its penalty,
aggravating circumstance. This burden is imposed on top and the fact that the aggravating circumstance cannot be
of the intended in terrorem effect of the original penalties offset by any mitigating circumstance. Additionally, all these
imposed by the Revised Penal Code. Thus, the public will now extra burden can be easily imposed since the use of ICT per
_______________ se, without need to prove criminal intent, automatically calls
10 Id., at p. 277; Luis B. Reyes, The Revised Penal Code – Criminal Law,
for the application of a penalty one degree higher.
Book One, p. 328 (2008).
_______________
11 See REVISED PENAL CODE, Art. 61 (on rules for graduating penalties);
12 Dissenting and Concurring Opinion of Justice Leonen, p. 546.
Reyes, supra note 10 at pp. 705-706; Cf.: People v. Medroso, No. L-37633, 31
140
January 1975, 62 SCRA 245.
139have to take this additional burden into account in their
The increase in penalty also
calculation of penalties. As if the need to weigh the costs and results in the imposition of
benefits of whether to exercise freedom of speech is not harsher accessory penalties.
burdened enough by the possibility of a libel suit, the public As explained earlier, before the Cybercrime Prevention Act,
will now have to additionally mull over their use of ICT in the the imposable penalty for libel under Art. 355 of the Revised
exercise of this freedom through ICT. Penal Code, even if committed by means of ICT, was prisión
Every individual, including those of us in the judiciary, who correccional in its minimum and medium periods. Now, under
rely heavily on the use of ICT can easily see how burdensome Section 6 of the Cybercrime Prevention Act, the imposable
this state of affairs is. Significantly, the statistical facts show penalty for libel qualified by ICT has been increased to prisión
that the Philippines depends greatly on ICT as a means of correccional in its maximum period to prisión mayor in its
communication and of expression. As pointed out by Justice minimum period.13 Consequently, it is now possible for the
Leonen in his Separate Dissenting and Concurring Opinion to harsher accessory penalties for prisión mayor to attach. These
the main Decision, a global study of internet users showed are: the deprivation of public offices and employments even if
that 78% of Filipino respondents said that they access the conferred by popular election, the deprivation of the right to
Internet several times a day, while 79% used e-mail at least vote, disqualification from offices or public employments and
once a day.22 Additionally, 72% used social media at least once the forfeiture of retirement pay. Undeniably, public office and
a day. This shows the inextricability of ICT from our national employment as well as the right to vote, and retirement pay
life. Indeed, we do not need statistics to convince us of this are not trifling privileges that one can easily risk losing.
fact. What office or establishment or individual can function Hence, the public will now have to factor in these severe
without the Internet nowadays? Given this reality, it is consequences into their calculations. The exercise of freedom
inevitable that the increase in penalty per se will effectively of speech through ICT is thereby further burdened.
chill the exercise of the preferred constitutional right to free I also note that these accessory penalties hit public officers
speech. hardest. This can be troubling because it is often public
servants who know about and may expose corruption within
their ranks. Such harsher penalties will certainly discourage 14 Probation Law; Francisco v. Court of Appeals, 313 Phil. 241; 243 SCRA
384 (1995); and Baclayon v. Mutia, 241 Phil. 126; 129 SCRA 148 (1984).
public servants from exercising their freedom of speech to See: Del Rosario, Jr. v. Rosero, 211 Phil. 406; 126 SCRA 228 (1983).
denounce wrongdoing. We are therefore depriving ourselves 15 According to the 2012 Global Internet Survey, 91% of Filipino
of a potent check against official abuse. respondents agree that the Internet does more help to society than it does to
The increase in penalty neutral- hurt it while 93% have indicated that their lives have improved due to using
the Internet. Additionally, 96% agree that the Internet is essential to their
izes the full benefits of the law knowledge and education. See Dissenting and Concurring Opinion of Justice
on probation, consequently Leonen p. 547.
threatening the public with the 142cise of free speech. Furthermore, it should be noted that
_______________ offenders will now lose the additional benefit of probation —
13 Supra note 11.
141 the suspension of accessory penalties.
guaranteed imposition of im- Section 6 increases the prescrip-
prisonment and the accessory tion periods for the crime of cyber-
penalties thereof. libel and its penalty to 15 years.
Under Presidential Decree No. (P.D.) 968 or the Probation Before the passage of the Cybercrime Prevention Act, the
Law,14 qualified offenders who immediately admit to their State waives its right to prosecute libel after only one year.
liability and thus renounce the right to appeal are given the With the increase in penalty by one degree pursuant to
chance to avoid the stigma of incarceration by making them Section 6 of the Cybercrime Prevention Act, however, the
undergo rehabilitation outside prison instead. However, penalty for libel through ICT becomes afflictive under Article
Section 9 of the law excludes those sentenced to serve 25 of the Revised Penal Code. Accordingly, while a charge for
a maximum term of imprisonment of more than six ordinary libel may be filed within the limited period of only
years from its coverage. Since the maximum penalty one year from its commission, the charge for online libel can
for libel committed through the use of ICT has been be instituted within 15 years since under Article 90 that is the
increased two-fold to 8 years, a convicted offender may prescription period for crimes punishable by afflictive
now be disqualified from availing of the benefits of penalties, other than reclusion perpetua and reclusion
probation. temporal.26This is not a trivial matter since, in effect, the
Given the basic postulate animating our penal laws that threat of prosecution for online libel lingers for 14 years more.
humans are calculating beings who weigh the perils of their Similarly, the prescription period for the penalty of libel
actions, it is possible that people may risk a conviction for through ICT is increased from 10 to 15 years.
libel, since they may avail themselves of the privilege of These increases in the prescription periods are additional
probation. They may find that the exercise of their freedom to factors in the rational calculation of whether or not to exercise
speak and to express themselves is worth the threat. But freedom of speech through ICT. Obviously, this adverse
when this very beneficial15 technology is made a change further tilts the scales against the exercise of freedom
qualifying aggravating circumstance that guarantees of speech.
imprisonment, the in terrrorem effect of libel is further ICT as a qualifying aggravating
magnified and becomes unduly oppressive to the exer- circumstance cannot be offset b
_______________ any mitigating circumstance.
A qualifying aggravating circumstance like the use of ICT 28 Supra note 8 at p. 277.
29 G.R. No. 203469.
increases the penalty by degrees, not by period as a generic
_______________ 144ICT contributed to the gravity of the crime.20 Hence, even
16 See also TSN dated 15 January 2013, pp. 80-81. if the use of ICT is “completely arbitrary” and unintended, it
143aggravating circumstance does.17 Moreover, while a merits a higher penalty that is double that imposed for
generic aggravating circumstance may be offset by a generic ordinary libel.21
mitigating circumstance such as voluntary surrender, a They also note that provisions of the Cybercrime
qualifying aggravating circumstance is more onerous in that Prevention Actappear to be malum prohibitum. Hence, they
it cannot be similarly offset.18Hence, since Section 6 now penalize acts by their mere commission regardless of the
punishes the offender with a higher range of penalty intent of the actor.32 Petitioners then proceed to explain that
— prisión correccional in its maximum period (from 4 years, 2 this is inconsistent with the idea of criminalizing the act of
months and 1 day to 6 years) to prisión mayor in its minimum aiding and abetting the commission of a crime as well as the
period (from 6 years and 1 day to 8 years) — the period of attempt to commit a crime that operate within the concept
imprisonment will remain within this higher and harsher of malum in se, where intent or mens rea is essential to justify
range. culpability and penalty. Hence, the mere fact of having aided
It is not difficult to see how Section 6 subjugates the commission of a crime already becomes criminal even
freedom of speech through its combined effects — without criminal intent under Section 5.
longer prison terms, harsher accessory penalties, loss While petitioners Cruz, et al. raise the criticism of
of benefits under the Probation Law, extended inconsistency with regard to Section 5, I believe that it is more
prescription periods, and ineligibility of these appropriately raised against Section 6. Their observation is
penalties to be offset by mitigating circumstances. We true in the way ICT as a qualifying circumstance is applied:
cannot turn a blind eye to this and turn our backs on the the use of ICT per se, even without criminal intent, merits an
Filipino people. I am convinced more than ever of the automatic one degree increase in penalty. This application, I
unconstitutionality of Section 6, as far as libel is concerned. believe, is inconsistent with the philosophy animating
For providing that the use per se the Revised Penal Code. It also burdens free speech since the
of ICT, even without malicious provision makes it extremely easy to prove the existence of
intent, aggravates the crime of this qualifying circumstance against an offender. How can a
libel, Section 6 is seriously flawed simple click of the mouse, without more, earn a person a
and burdens free speech. penalty one degree higher than the original penalty for libel,
I now discuss an additional factor by which free speech is with all its consequent oppressive effects discussed above?
burdened. Under the Revised Penal Code the basic consideration for
Petitioners Cruz, et al.19 observe in their motion for criminal liability to arise is the mens rea of the accused.23 He
reconsideration that Section 6 increases by one degree the must be shown to have possessed a guilty mind or criminal
penalty for a crime committed through ICT without regard to _______________
20 Id., at p. 30.
how
21 Id.
_______________
22 Id.
27 LEONOR D. BOADO, NOTES AND CASES ON THE REVISED PENAL CODE, p.
23 People v. Sandiganbayan, 341 Phil. 503; 275 SCRA 505 (1997).
146 (2008 ed).
145intent on top of committing the physical act prohibited 146Most aggravating circumstances are in the nature of
by law.24Hence, as a general rule, it is necessary for criminal means and ways employed to commit a crime.30 The use of ICT
liability that the act be committed by means of dolo or logically falls under this category as a means for the
“malice”;25 otherwise, there can be no crime. That is why commission of libel and other crimes under the Revised Penal
crimes under the Revised Penal Code, including libel, are Code. Hence, we proceed to further analyze this category. A
generally characterized as crimes mala in se, for which there closer look below at the circumstances falling under this
must be malicious intent. category31 reveals a shared principle behind their appreciation
It follows that to incur greater criminal liability and and application: that they must be abused deliberately with
consequently higher penalty, such as that provided criminal intent. The same principle should then properly
under Section 6, there must also be a greater apply to the use of ICT, since it belongs to the same category.
perversity of the mind, a greater mens rea, or Hence, the need for criminal intent in the use of ICT before it
a greater criminal intent. Hence, for the existence of a can be deemed aggravating.
circumstance to be considered in increasing criminal liability, Taking advantage of a public
it is essential that such circumstance clearly reveal position.
the guiltier mind and greater criminal intent of the accused. The circumstance of (the offender’s) public position is not
Thus, there must be a clear intent and purposeful taking aggravating by itself. It only becomes so if it was taken
advantage of an aggravating circumstance. This is the advantageof and there is proof that it was.32 It means that the
fundamental principle behind the application of an offenders must have used the influence, prestige or ascen-
aggravating circumstance. _______________
30 By taking advantage of public position; by a band; with the aid of armed
The heavier punishment resulting from the attendance of men or persons who insure or afford impunity; through abuse of confidence;
so-called aggravating circumstances under Article 14 of the by means of inundation, fire, poison, explosion, stranding of a vessel or
Revised Penal Code is attributed to various factors, which intentional damage thereto, derailment of locomotive, or by the use of any
may be categorized as (1) the motivating power itself (e.g., “in other artifice involving great waste and ruin; by craft, fraud, or disguise; with
evident premeditation; by taking advantage of superior strength, or by
consideration of a price, reward, or promise”);26 (2) the place of employing means to weaken the defense; with treachery; by employing means
commission (e.g., “dwelling of the offended party”);27 (3) the or bringing about circumstances which add ignominy; through unlawful entry;
means and ways employed (e.g., use of vehicle), (4) the time by breaking a wall, roof, floor, door, or window; with the aid of persons under
(e.g., nighttime);28 or (5) the personal circumstances of the fifteen years of age or by means of motor vehicles, motorized watercraft,
airships, or other similar means and by deliberately augmenting the wrong
offender or of the offended party (e.g., “insult or disregard of done by causing other wrong not necessary for its commission.
respect due to a party on account of rank, age, sex”).29 31 Id.
_______________ 32 REYES, supra note 26 at p. 338 citing People v. Ordiales, No. L-30956,
24 VICENTE J. FRANCISCO, THE REVISED PENAL CODE: ANNOTATED AND 23 November 1971, 42 SCRA 238, 245-246.
COMMENTED – BOOK ONE, p. 33 (3rd ed., 1958). 147dancy that their office gives them as the means
25 Id., at pp. 33-34.
26 LUIS B. REYES, THE REVISED PENAL CODE – CRIMINAL LAW, BOOK ONE,
by which they realize their purpose.33 The offenders must
p. 385 (2008). have abused their office in order to commit the offense.34 In
27 Id., at p. 349. that way, the malicious intent of the mind is revealed. If the
28 Id., at p. 363. accused did not avail themselves of their authority, their
29 Id., at p. 343.
public position would not be aggravating;35 not even if they
were sergeants in the Philippine Army and were in fatigue offended party.44Indeed, it is essential that the confidence
uniform and had army rifles at the time they committed a between the parties was immediate and personal, such that it
crime.36 Hence, the intent to use a public position for the gave the accused some advantage or made it easier for them to
purpose of committing a crime appears to be essential. commit the criminal act.45Again, intent is essential for this
By a band or with the aid of circumstance to aggravate the crime.
armed men Use of vehicle
Similarly, the circumstance of commission of a crime by a Among the aggravating circumstances, the one closest to
band should have been especially sought and taken advantage the use of ICT would be the use of vehicles, since both are
of.37Jurisprudence is consistent that the aid of armed men is tangible tools and are by themselves neutral, if not beneficial.
not aggravating unless the accused availed themselves of that But again, like the other aggravating circumstances, the mere
aid or relied upon it.38 The accused must have knowingly use of a vehicle will not qualify it as an aggravating
counted upon the assistance of the armed men in the circumstance. The use of vehicle has to be purposely sought to
commission of the crime.39 facilitate the commission of the offense or to render the escape
Abuse of Superior strength of the offender easier and his apprehension more difficult.
The same is required of superior strength — it must have Otherwise, the circumstance is not aggravating.46
been abused purposely.40 It is present when the _______________
41 REYES, supra note 26 at p. 419.
offenders assess a superiority of strength that they select and 42 AQUINO, supra note 8 at p. 350.
take ad- 43 Id., at p. 351, citing Elizaga, 86 Phil. 365.
_______________ 44 FRANCISCO, supra note 24 at p. 495, citing People v. Luchico, 49 Phil.
33 AQUINO, supra note 8 at p. 279; REYES, supra note 26 at p. 336, 689; REYES, supra note 26 at p. 357.
citing U.S. v. Rodriguez, 19 Phil. 150, 156-157 (1911). 45 AQUINO, supra note 8 at p. 299.
34 AQUINO, id. 46 REYES, supra note 26 at p. 463, citing People v. Garcia, No. L-32071, 9
35 Id., at p. 284 citing Jacinto Martinez, 2 Phil. 199 (1903). July 1981, 105 SCRA 325. See also People v. Espejo (No. L-
36 Id., at p. 285 citing Pantoja, 25 SCRA 468 (1968). 149
37 REYES, supra note 26 at p. 373.
Like other means of committing
38 Id., at p. 376.
39 FRANCISCO, supra note 24 at p. 501, citing U.S. v. Abaigar, 2 Phil. 417 a crime which are made aggra-
(1903). vating circumstances, the use of
40REYES, supra note 26 at p. 409. ICT has to be purposely sought
148vantage of in the commission of the crime.41 The mere fact to show criminal intent justify-
of superiority in the number of assailants does not suffice; ing a higher penalty.
they must have taken advantage of their combined It is clear from this sampling that for aggravating
strength.42 They must have cooperated in such a way as to circumstances that refer to the means employed to commit the
secure advantage from their superiority in strength.43 crime, it is essential that deliberately employing or taking
Abuse of confidence advantage of them either to facilitate the crime or to insure
For the aggravating circumstance of abuse of confidence, it impunity must be proven. This is as it should be, since it is
is necessary that there exists a relationship of trust and the knowing and purposive resort to the aggravating
confidence between the accused and the victim, and that the circumstances — the added criminal intent — that aggravates
culprits took advantage of the trust reposed in them by the the crime. In other words, the aggravation arises because of a
more perverse mind, not from the mere presence or use of the use of ICT for the commission of a crime like libel becomes all
means. It is this malicious intent in the adoption of the the more crucial, logical and just.
circumstance that reveals an added perversity that justifies a Because of this unclear requirement of criminal intent in
greater penalty. the application of the qualifying circumstance of use of ICT,
The same principle should be applied to ICT. The Section 6 of the Cybercrime Prevention Act effectively scares
mere use of ICT by itself should not automatically the public from using ICT and exacerbates the chilling effect
make it aggravating. It has to be purposely sought to on free speech.
facilitate the crime, maximize damage or ensure Considering all these, it is not difficult to see how the
impunity. It must be established that the otherwise increase of the penalty under Section 6 mutes freedom of
beneficial nature of ICT was selected and intentionally speech. It creates a domino effect that effectively subjugates
sought, deliberately and consciously adopted to advance the the exercise of the freedom — longer prison terms, harsher
perpetration of the crime. That is the only way to attribute accessory penalties, loss of benefits under the Probation Law,
greater perversity on the part of the offender in using extended prescription periods, and ineligibility of these
ICT and to justify the imposition of a penalty one penalties to be offset by mitigating circumstances. Worse, the
degree higher. If there is no such intent, there can be qualifying circumstance can be applied easily by simply
no aggravation. If the mind is innocent as to the proving the use of ICT, sans proof of criminal intent to
adoption of a particular means, there can be no purposely use ICT for libel, thereby further chilling freedom
aggravating circumstance. This of speech.
_______________ 151
27708, 19 December 1970, 36 SCRA 400, 418) which found aggravating the The Court must clarify that ICT
use of a vehicle in going to the place of the crime, in carrying away the effect
should not refer to “stand alone”
thereof and in facilitating escape of the offenders.
150malicious intent, like the elements of the crimes itself,
devices but should be connected
must be proven beyond reasonable doubt. If not so proven, the to the Internet.
ICT cannot qualify the crime, and the criminal cannot be The Court must also take the time to clarify that ICT as
penalized one degree higher. used in Section 6 should refer only to devices connected to the
Hence, there is a need to spell out the condition that ICT Internet and does not include stand alone devices. This should
be specifically taken advantage of and abused to necessarily follow from the avowed reasons of the government
facilitate the commission of a crime, ensure impunity, for imposing one degree higher penalty on crimes committed
or maximize damage. In other words, its use has to be with the use of ICT.
abused to be aggravating. As the Court had said, the use of ICT enables the offender
That the law failed to specify that ICT must be taken to evade identification and to reach far more victims or cause
advantageof and abused with intent — in order to facilitate greater harm. Indeed, respondents in their Memorandum
the crime, ensure impunity or maximize the damage — is prepared by the Office of the Solicitor General (OSG)
lamentable. Again, considering how ICT has become so enumerate three factors which justify the higher penalty for
ubiquitously indispensable and how it has penetrated almost crimes committed with the use of ICT.47 First, the OSG
every facet of life, the need to specifically show intent in the explains that cybercrimes are limitless as to their scope
because they are not bound by time and geography. On the
other hand, non-cybercrimes are limited by distance, border had proceeded to review Section 4(c)(3), let me now explain
security, various regulations and time. Secondly, respondents my position on the matter.
explain that cybercrimes are easily committed due to the I fully agree with the opinion of Justice Roberto Abad that
accessibility of ICT.48 There are approximately 30 million commercial speech should be protected even if it does not
internet users in the country and a billion more worldwide. enjoy the same level of protection as other categories of free
Hence, any person can create widespread chaos with speech and expression. However, may I emphasize that
anonymity. Thirdly, criminal purpose is accomplished with the questioned provision is not burdensome to
greater impact with the use of ICT.49 commercial speech at all since the law does not
“Stand alone” devices do not have these consequences. prohibit the sending of unsolicited e-mail per se. Section
Hence, they could not have been contemplated under Section 4(c)(3)(iii) allows the sending of unsolicited e-mails, provided
6. that the following conditions are present: (a) the commercial
While this may seem obvious to most, many people are _______________
50 Phil. Bar Association (G.R. No. 203501); Cruz, et al. (G.R. No. 203378) ;
confused as seen from the number of motions for Adonis (G.R. No. 203378); Palatino (G.R. No. 203391).
reconsideration 51 Palatino (G.R. No. 203391).
_______________
153electronic communication contains a simple, valid, and
47 Respondents’ Memorandum dated 19 February 2013, p. 82.
48 Id. reliable way for the recipient to reject receipt of further
49 Id. commercial electronic messages (opt-out) from the same
152that raised this issue.50 Many think that the mere use of source; (b) the commercial electronic communication does not
a “stand alone” computer device will automatically trigger the purposely disguise the source of the electronic message; and
application of Section 6. If this is not clarified, it will sow (c) the commercial electronic communication does not
unnecessary fear of using computer technology with adverse purposely include misleading information in any part of the
effects on individual and organizational efficiency and message in order to induce the recipients to read the message.
productivity. In fact some petitioners51have made the absurd Additionally, Petitioners Cruz, et al., make a valid
conclusion that even the use of hardware in the commission of observation when they point out in their motions for
the crime, such as physically injuring a person by hitting him reconsideration that contrary to the holding of the majority,
with a mobile phone, will now be penalized under the online transmission of unsolicited commercial
questioned provision, with all its concomitant penalties. communications is not of the same level as unsolicited
Validity of regulating unsolicited advertisements by mail.52
commercial communications under Firstly, ordinary mail advertisements are not as
Section 4(c)(3). voluminous while e-mail ads can be so voluminous that they
I have previously found the petitions questioning Section interfere with an e-mail user’s enjoyment of his e-mail
4(c)(3) dismissible because of a failure to establish that a pre- account. Indeed, the assailed provision seeks to prevent
enforcement judicial review thereof was warranted. Hence, malicious attacks done through the sending of e-mails, which
without delving into the merits of petitioners’ arguments, I the victim cannot opt out from. One of those forms of attack
disagreed with the majority when they declared the includes what is called “mail bombing.”53Here, an attacker
questioned provision unconstitutional; first, because the said intentionally sends large volumes of e-mail to a single address
petitions are dismissible per se. However, since the majority in an effort to overwhelm the mail server and degrade the
communication system by making it unserviceable.54 This is a phishing attacks are initiated through e-mails, where the user gets
form of Denial of Service (DoS) attack, as it prevents other an e-mail that prompts him or her to follow a link given in the e-
users who are using the same server from accessing their e- mail. This link leads to a phishing Web site, though the e-mail says
mails.55 We can thus imagine a situation in which an e-mail otherwise.
_______________
account reaches its storage capacity, thereby preventing the 56 See EC COUNCIL, COMPUTER FORENSICS: INVESTIGATING NETWORK
account holder from receiving legitimate mails, as these e- INTRUSIONS & CYBER CRIME, pp. 76-77 (2010).
mails are 57 Supra note 19 at p. 9.
58 CLOUGH, supra note 54 at pp. 192-194; EC Council, supra note 54 at pp. 7-
_______________
8.
52 Supra note 19 at p. 8.
59 See CLOUGH, supra note 54 at pp. 192-194.
53 Also called “jamming” or “flooding.” See VICENTE AMADOR, 60 CLOUGH, supra note 54 at pp. 192-194; EC COUNCIL, supra note 54 at p. 78.
WWW.CYBERLAW.COM, pp. 421-422 (2010). 61 Id.
54 JONATHAN CLOUGH, PRINCIPLES OF CYBERCRIME, p. 37 (2010); EC
155The e-mail may contain a message stating that a particular
COUNCIL, COMPUTER FORENSICS: INVESTIGATING NETWORK INTRUSIONS &
CYBER CRIME, pp. 76-77 (2010). transaction has taken place on the user’s account, and a link is
55 Id. provided to check his or her balance. Or the e-mail may contain a
154“bounced” back to the senders.56 This situation would link to perform a security check on the user’s account.
impede the robust exchange of ideas as well as the speedy flow Hence, Section 4(c)(3) is valid because it seeks to regulate
of information and communication. It is precisely so that a potentially harmful conduct. Such harmful conduct may
recipients of unsolicited commercial communications can interfere with a user’s enjoyment of his e-mail and
prevent the congestion of their e-mail accounts that the consequently of his legitimate exercise of his fundamental
provision requires that recipients of unsolicited commercial rights that e-mail facilitates. Thus, I respectfully disagree
communications be allowed to opt out under Section with the facial invalidation of Section 4(c)(3) and hold that it
4(c)(3)(iii). is not unconstitutional.
Secondly, as petitioners pointed out, unsolicited e-mail Call to vigilance
commercial communications, unlike ordinary mail The Court has struck down provisions of the Cybercrime
commercial communications can be used for another form of Prevention Act that clearly violate constitutional rights such
attack called “phishing.”57 It is an internet scam done by as Section 12 and Section 19. It also partially struck down as
offering enticing deals or false statements (such as winning a unconstitutional Section 7 insofar as it applies to cyberlibel
cash prize), aimed at tricking users into disclosing their and online child pornography and Section 4(c)(4) insofar as it
personal, financial, and other confidential information.58 The creates criminal liability on the part of persons who receive a
message used for phishing may appear to be coming from a libelous post and merely react to it. However, we left Section
department store, a known company, a bank, the government, 6 completely untouched while wrongly invalidating Section
or even from a contact whose e-mail account has been 4(c)(3). The motions for reconsideration of the two provisions
“hacked.”59 Phishing can attack millions of e-mail addresses had given the Court another opportunity to complete the job
around the world, and has emerged as an effective method of it has started by also striking down as unconstitutional
stealing personal and confidential data of users.60 It is said Section 6 insofar as its application to libel clearly chills
that phishing is typically executed as follows:61 freedom of speech and by upholding the constitutionality of
A successful phishing attack deceives and convinces users with Section 4(c)(3). It is an opportunity we should not have
fake technical content and social engineering practices. Most squandered.
We cannot be complacent. The very fabric of our democratic I had earlier voted with the majority to uphold Section
society is in danger of being slowly torn apart. The Court 4(c)(4) on cyberlibel — save for its application to those who
staunchly defended the right to commercial speech of _______________
62 Paraphrasing US Supreme Court Justice John Paul Stevens who said
advertisers by declaring unconstitutional Section 4(c)(3) in Reno v. ACLU, 521 U.S. 844, 885 (1997), “The interest in encouraging
which simply regulates the sending of unsolicited commercial freedom of expression in a democratic society outweighs any theoretical but
communications even as it admits that commercial speech is unproven benefit of censorship.”
not accorded the same level of protection as that given to other 157merely react to a libelous post — on the presumption
156constitutionally guaranteed forms of expression. On the that Section 6, which imposes a one degree higher penalty on
other hand, it does not give the same steadfast protection for crimes committed using ICT, would be declared
freedom of speech which Section 6 clearly chills. Hence, it is unconstitutional insofar as it is applied to cyberlibel.
puzzling that the Court is willing to uphold commercial However, in view of the ultimate ruling of the majority
speech than the preferred right to free speech of citizens. affirming the constitutionality of Section 6, I consequently
True, the State has a legitimate interest in the conclude that Section 4(c)(4) is wholly unconstitutional. The
preservation of order. For that purpose, it also has the power, invalidation of Section 6 would have removed the heavy
exercised through the legislature, to criminalize acts and burden on free speech exercised online. Indeed, Section 6 is
provide penalties therefor. Hence, it can validly regulate completely incompatible with free speech. To reiterate, the
harmful conduct under Section 4(c)(3). Section 6, however, is majority’s insistence that Section 4(c)(4) cannot be
a different matter. The State cannot override a clear implemented without at the same time imposing the higher
Constitutional command that no law shall be passed penalty provided by Section 6 — with its invidious chilling
abridging the freedom of speech. I believe that the interest in effects discussed above — constrains me to hold that Section
encouraging free speech in a democratic society outweighs any 4(c)(4) is wholly unconstitutional as well. If free speech is to
theoretical but unproven benefit of an unduly harsher penalty be truly defended as a right with a preferred position in the
for cyberlibel.62 hierarchy of rights, its online exercise should also be
The history of our nation has shown that we do not lack for vigorously protected.
brave people who dutifully speak against the excesses of WHEREFORE, I vote to DECLARE:
government and at great cost to themselves. In recent times, 1. Section 6 UNCONSTITUTIONAL, insofar as it
ICT has been used to generate mass protests against applies to libel, for unduly curtailing freedom of speech;
perceived corruption and excesses in government. But the 2. Section 4(c)(4) UNCONSTITUTIONAL; and
guaranteed imposition of imprisonment of as much as eight 3. Section 4(c)(3) NOT UNCONSTITUTIONAL for
years and harsher accessory penalties that Section 6 being a valid regulation of a harmful conduct.
mandates, together with the fact that they may be imposed so Nevertheless, I CONCUR with the majority in its other
easily since no criminal intent is necessary to make the use of dispositions.
ICT a qualifying circumstance, may force even the bravest
and most conscientious dissenters among us to forego their DISSENTING OPINION
prized constitutional right to free speech and expression. That
would be the start of the slow, quiet, but sure demise of our BRION, J.:
democracy. We can be complacent only at our own peril.
I write this dissenting opinion to the Court’s resolution (4) Libel.—The unlawful or prohibited acts of libel as defined in Article
355 of the Revised Penal Code, as amended, committed through a computer
denying the motions for reconsideration regarding the system or any other similar means which may be devised in the future.
constitutionality of the Cybercrime Prevention Act
(Cybercrime Law) to reiterate my stance regarding cyberlibel, 159violates freedom of speech because it unduly increases the
and urge my colleagues to reconsider its earlier ruling prohibitive effect of libel law on online speech.
upholding the constitu- My reasons are twofold: first, I do not believe that there is
158tionality of the application of Section 61 of the Cybercrime
sufficient distinction between libelous speech committed
Law to cyberlibel.2 online and speech uttered in the real, physical world to
The ponencia denied the motions for reconsideration, and warrant increasing the prohibitive impact of penal law in
upheld the constitutionality of the application of Section 6 of cyberlibel.
the Cybercrime Law to cyberlibel. According to the ponencia, Second, the increase in the penalty of libel when
Section 6, which qualifies the crime of libel when committed committed through computer systems can have the effect of
through Information Communications Technology (ICT) and imposing self-censorship in the Internet and of curtailing an
increases its penalty, is not unconstitutional because it is a otherwise robust avenue for debate and discussion on public
valid exercise of Congress’ power to define and penalize issues. In other words, over-penalizing online speech could
crimes. The ponencia also alleged substantial distinctions overreach into matters other than libelous and can thus
between cyberlibel and libel that warrant an increase in the prevent protected speech from being uttered.
penalty of the former. Cyberlibel as libelous speech
At the outset, allow me to clarify that I do not think that committed through the Internet
libel per se is unconstitutional; neither is its The ponencia pointed out as justifications for increasing
application in communications made through ICT the penalty of cyberlibel the following characteristics of
violative of the Constitution. Jurisprudence has long communications in the Internet: its speed, worldwide reach
settled that libel is not protected speech, and that Congress, and relative anonymity. The ponencia notes that cybercrimes,
in the exercise of its power to define and penalize crimes, may including cyberlibel, are more perverse than traditional
validly prohibit its utterance. crimes because of the anonymity of its perpetrator and the
Increasing the penalty of libel when committed through difficulty of prosecuting cybercrimes.
ICT, however, is another matter. I submit that Section 6 of Viewed at its most extreme, cyberlibel’s impact on a
the Cybercrime Law, insofar as it qualifies the crime of libel, person’s reputation would indeed be more perverse than
_______________
1 Section 6 of the Cybercrime Law provides: ordinary libel — the speed, worldwide reach and the sender’s
SEC. 6. All crimes defined and penalized by the Revised Penal Code, as relative anonymity in Internet communications all contribute
amended, and special laws, if committed by, through and with the use of to increasing a libelous statement’s harmful effect on a
information and communications technologies shall be covered by the relevant
person’s reputation. Thus, a libelous article, once published
provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as and shared in the Internet, could reach millions in a short
amended, and special laws, as the case may be. period of time, and injure reputation more than if it had been
2 Section 4(c)(4) of the Cybercrime Law provides: published in the traditional sense.
But allow me to point out the other side of the impact of
qualifying cyberlibel: a person, who sent an e-mail containing
160a libelous statement against another person, with the 161seen by anyone who wants to view it (amounting to
intent of sending that e-mail only to the latter and has in fact millions or more, depending on the website’s traffic) through
been viewed only by that person, would be penalized with a public website.
cyberlibel and its corresponding higher penalty. A person, Worthy of note too, is that the publicity element of libel in
who through the course of chatting online with another person the Revised Penal Code does not take into consideration the
privately uttered a libelous statement about a third person amount of audience reached by the defamatory statement.
may also be penalized with cyberlibel. The definition of Libelous speech may be penalized when, for instance, it
publication, after all, has not been changed when the reaches a third person by mail,4or through a television
elements of libel in the Revised Penal Code had been adopted program,5 or through a newspaper article published
into the definition of cyberlibel. For libel prosecution nationwide.6 All these defamatory imputations are
purposes, a defamatory statement is considered published punishable with the same penalty of prision correccional in its
when a third person, other than the speaker or the person minimum and medium periods or a fine ranging from 200 to
defamed, is informed of it.3 6,000 pesos or both.7 I do not see any reason why libel
In the examples I have cited, the reach of the libelous committed through ICT should be treated in a harsher
statement committed through the Internet is more or less the manner.
same as its reach had it been published in the real, physical I submit that we cannot rule on the basis of extreme,
world. Thus, following the ponencia’s reasoning, we will have outlying situations, especially since, as I would explain in my
a situation where a libelous statement that has reached one succeeding discussion, increasing the penalty of cyberlibel
person would be punished with a higher penalty because it could curtail speech in the Internet. If we must err in this
was committed through the Internet, just because others decision, we must err on the side of protecting freedom of
could reach millions when communicating through the same speech, a fundamental right ranking high in the value of
medium. constitutional freedoms, so cherished because it is crucial to
The same reasoning applies to anonymity in Internet the functioning of a working democracy.
communications: an anonymous libeler would be penalized in As a final point in the matter, I note that despite the Cyber-
the same manner as an identified person, because both of crime Law’s passage, bills punishing cyber-bullying and
them used the Internet as a medium of communicating their electronic violence have been filed in Congress. As filed, the
libelous utterance. bills penalize cyber-bullying, or the act of using social media
The apparent misfit between the ponencia’s reasons behind to “harm or harass other people in a deliberate, repeated and
the increase in the penalty of cyberlibel and its actual hostile manner.”8Electronic Violence, on the other hand, has
application lies in the varying characteristics of online speech: _______________
4 U.S. v. Grino, 36 Phil. 738 (1917); People v. Silvela, 103 Phil. 773 (1958).
depending on the platform of communications used, online 5 People v. Casten, C.A.-G.R. No. 07924-CR, December 13, 1974.
speech may reach varying numbers of people: it could reach a 6 Fermin v. People of the Philippines, 573 Phil. 12; 550 SCRA 132 (2008).
single person (or more) through e-mail and chat; it could be 7 Article 355 of the Revised Penal Code.
_______________ 8 Section 2 of House Bill No. 3749, or the SOCIAL MEDIA REGULATION ACT
3 Alcantara v. Ponce, 545 Phil. 678, 683; 517 SCRA 74, 80 (2007). OF 2014.
162been defined as any act involving the exploitation of data I am also of the view that the seven (7) Motions for Partial
that “can cause or is likely to cause mental, emotional and Reconsideration1 and the Motion for Reconsideration2 have
psychological distress or suffering to the victim.”9 raised very serious constitutional issues that should merit a
To my mind, these bills represent Congress’ intent to second full deliberation by this court. At the very least, we
penalize the extreme situation that the ponencia should have required the opposing parties to file their
contemplates; at most, these bills are a recognition that comments on these motions. Thereafter, a full analytical
cyberlibel has not been intended to cover such extreme evaluation of each and every argument should have been
situation, but only to recognize and clarify that the crime of done. The members of this court should have been given
libel may be committed through computer systems. enough time to be open and reflect further on the points raised
The increase in penalty under Section by the parties.
6 of the Cybercrime Law overreaches The matters raised by the parties revolve around the
and curtails protected speech cherished right to free expression in the internet age. The
I further agree with the Chief Justice’s arguments brief resolution issued on behalf of the majority of this court
regarding the application of Section 6 to libel. fails to do justice to the far-reaching consequences of our
As Chief Justice Sereno points out, Section 6 not only decision in this case.
considers ICT use to be a qualifying aggravating It is not enough that we proclaim, as the majority does, that
circumstance, but also has the following effects: first, it libel is unprotected speech. The ponencia’s example, i.e.,
increases the accessory penalties of libel; second, it “[t]here is no freedom to unjustly destroy the reputation of a
disqualifies the offender from availing of the privilege of decent woman by publicly claiming that she is a paid prosti-
probation; third, it increases the prescriptive period for the _______________
1 The parties that filed Motions for Partial Reconsideration are: petitioner
crime of libel from one year to fifteen years, and the Senator Teofisto Guingona III in G.R. No. 203359; petitioners Alexander
prescriptive period for its penalty from ten years to fifteen Adonis, et al. in G.R. No. 203378; petitioners Bayan Muna, et al. and Bayan
years; and fourth, its impact cannot be offset by mitigating Muna Representative Neri Colmenares, et al. (filed a joint motion) in G.R. Nos.
circumstances. 203407 and 203509; petitioners Bloggers and Netizens for Democracy (BAND)
including Anthony Ian M. Cruz, et al. in G.R. No. 203469; petitioners National
These effects, taken together, unduly burden the freedom Union of Journalists of the Philippines, et al. in G.R. No. 203543; petitioners
of speech because the inhibiting effect of the crime of libel is Philippine Bar Association in G.R. No. 203501; respondents and the Office of
magnified beyond what is necessary to prevent its the Solicitor General.
commission. Thus, it can foster self-censorship in the Internet 2 Petitioners Hon. Raymond Palatino, et al. in G.R. No. 203391 filed a
Motion for Reconsideration.
and curtail otherwise protected online speech.
_______________
9 ELECTRONIC VIOLENCE AGAINST WOMEN (E-VAW) LAW OF 2013. 164tute,”3fails to capture the nuances of criminalizing libel
in our jurisprudence and in reality. It is a precarious
163 simplification of the issue inferred from one imagined case.
This obfuscation practically neuters the ability of this court to
DISSENTING OPINION do incisive analysis in order to provide the necessary
protection to speech as it applies to the internet.
LEONEN, J.:
I reiterate my dissent in this case.
The ponencia cites the 1912 case of Worcester v. Ocampo4 to emerged since US v. Bustos10 and expanded the protection of
support its argument. There was no internet in 1912. The free speech as against prosecutions for libel for both public
jurisprudential analysis of problems relating to speech officers and public figures. These precedents were unbroken
criticizing public officers and public figures took many turns until our decision in this case.
since then.5 The majority now condones the same 1930s text definition
The analysis of libel is compounded by the unfortunate of libel effectively discarding the carefully crafted exception
confusion by the ponencia of “libelous speech” and “hate painstakingly built from the assertion of fundamental rights
speech” by citing a case decided beyond our jurisdiction, that in this court. This condonation reveals the legislative blinders
of Chaplinsky v. New Hampsire.6 Chaplinsky was a case to the radically different context of the internet. The text of
decided in Section 4(c)(4) of the Cybercrime Prevention Act of 2012 is a
_______________ swing towards lesser protection of the primordial right to
3 Ponencia, p. 130.
speech. The position taken by the majority deserves a second
4 Id. The ponencia cites the secondary source Bernas, S.J., The 1987
Constitution of the Republic of the Philippines, which cites 22 Phil. 41 (1912). hard look, if only to ensure the constitutional guarantee that
5 See United States v. Bustos, 13 Phil. 690 (1918) [Per J. Johnson]; New our people truly have freedom of expression as a means to
York Times Co. v. Sullivan, 376 U.S. 254 (1964); Ayer Productions Pty. Ltd. v. assert their sovereignty and governmental authority in
Capulong, 243 Phil. 1007; 160 SCRA 861 (1988) [Per J. Feliciano, En
Banc]; Borjal v. Court of Appeals, 361 Phil. 1; 301 SCRA 1 (1999)
cyberspace.
_______________
[Per J. Bellosillo, Second Division]; Vasquez v. Court of Appeals, 373 Phil. 238;
Rights, Citizenship and Suffrage, Vol. I, p. 672, which actually cites 315
314 SCRA 460 (1999) [Per J. Mendoza, En Banc]; Guingguing v. Court of
U.S. 568 (1942).
Appeals, 508 Phil. 193; 471 SCRA 196 (2005) [Per J. Tinga, Second Division];
7 376 U.S. 254, 270 (1964).
and Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15,
8 376 U.S. 254 (1964).
2009, 588 SCRA 1 [Per J. Quisumbing, Second Division]. See also Lopez v.
9 243 Phil. 1007; 160 SCRA 861 (1988) [Per J. Feliciano, En Banc].
Court of Appeals, 145 Phil. 219; 34 SCRA 116 (1970) [Per J. Fernando, En
10 13 Phil. 690 (1918) [Per J. Johnson].
Banc]; Mercado v. Court of First Instance, 201 Phil. 565; 116 SCRA 93 (1982)
[Per J. Fernando, Second Division]; and Adiong v. Commission on Elections, 166
G.R. No. 103956, March 31, 1992, 207 SCRA 712 [Per J. Gutierrez, En Banc]. Further reflection and deliberation is necessary, aided by
6 Ponencia, p. 131. The ponencia cites the secondary source Gorospe comments from all the parties to this case, to determine the
R., Constitutional Law: Notes and Readings on the Bill of effect of such simplified referral to the 1930s provision on libel
1651942 and the words uttered there were “fighting words” in a law that seeks to regulate networked and layered
within the context of another language and another culture. communities in the internet. The lines that distinguish what
This case should have been taken in the context of subsequent is private and what is public in cyberspace are not as clear as
declarations from the Supreme Court of that jurisdiction in the physical world. Social media creates various
which asserted that debates on public issues will occasionally interlocking communities of friends and followers. The
be caustic but needs to be “uninhibited, robust and wide ponencia’s concept of author and its simplified distinction of
open.”7 This was the 1964 case of New York Times Co. v. those that post and those that “like” posted comments are not
Sullivan.8 entirely accurate as used in the internet.11 A Twitter
Until the promulgation of the main opinion in this community of twenty followers should not be likened to a
case, Ayer Productions Pty. Ltd. v. Capulong9 was the Twitter community of thousands. Conversations limited to a
controlling case in this jurisdiction, not Chaplinsky v. New small group should not be considered public for purposes of
Hampshire. Ayer Productionsclarified jurisprudence that libel.
“Public defamation” as a category might not make sense in court should seriously take the allegations of vagueness and
cyberspace. Unlike various types of media for which our overbroadness15 and the possibility that the leeway given to
courts may now be familiar with, entry into various law enforcers16 can actual limit the fundamental rights of
cyberspace communities may require several conscious acts privacy and autonomy as well as the freedoms to express
by the user which may negate the evils that criminal libel is sexual intimacies.
supposed to prevent. For instance, the user agrees to end-user Also neglected are the issues raised in relation to Section
license agreements (EULA). 4(c)(3) which the Solicitor General characterized as sufficient
The chilling effect on various types of speech with just the and narrowly tailored to meet the public objective of
possibility of criminal libel prosecution compared with the preventing spam while at the same time solicitous of speech
consequences of civil liabilities for defamation presents in the
another dimension that have been glossed over by the main _______________
opinion and the resolution on the various motions for 13 Id., at pp. 63-70.
reconsideration.12 We have to acknowledge the real uses of 14 See Pita v. Court of Appeals, G.R. No. 80806, 178 SCRA 362,
criminal libel if we are to be consistent to protect speech made October 5, 1989. [J. Sarmiento, En Banc]
15 Petitioners Adonis, et al., in G.R. No. 203378, in their Motion
to make public officers and government accountable. Criminal
for Partial Reconsideration, pp. 32-33; petitioners Bayan, et al., and
libel has an in terrorem effect that is inconsistent with the
Bayan Muna Representative Neri Colmenares in G.R. Nos. 203407
con- and 203508, in their Joint Motion for Partial Reconsideration, pp.
_______________
11 See Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014,
26-28.
716 SCRA 237, 323. 16 Petitioners Adonis, et al., in G.R. No. 203378, in their Motion
12 See discussion on the state’s interest vis-à-vis decriminalization of libel for Partial Reconsideration, p. 33.
in J.Leonen’s Dissenting and Concurring Opinion, Disini v. Secretary of 168form of advertisements.17 I view the current provisions as
Justice, G.R. No. 203335, February 18, 2014, 716 SCRA 237, 376-377. sufficiently narrow and tailored to meet legitimate and
167temporary protection of the primordial and necessary right
compelling state interests. It protects the ordinary internet
of expression enshrined in our Constitution. The history and user against unwarranted intrusions. Certainly, freedom of
actual use of criminal libel13 should be enough for us to take a expression should not evolve into a fundamental and
second look at the main opinion in this case. The review protected right to badger. The Cybercrime Prevention Act of
should include a consideration of the nature of cyberspace as 2012 does not prohibit advertising. It simply requires that
layered communities used to evolve ideas. Such review should whoever advertises must be accountable to the user, not use
result in a declaration of unconstitutionality of criminal libel false identities and allow for opt out mechanisms so that the
in the Revised Penal Code and in the Cybercrime Prevention user will not continue to receive unwelcome advertising ad
Act of 2012. nauseum.18
The resolution of these motions for reconsideration does I agree with the Chief Justice that Section 6 attenuates the
not even consider the arguments raised against the overbroad penalties unjustifiably. I add that this amounts to a greater
concept of “lascivious” in Section 4(c)(1) or the prohibition of chilling effect when speech in any of its forms (political,
cybersex. This standard is an unacceptable retreat from our commercial or with sexual content) transfers from physical
current jurisprudential concepts of obscenity14 that produced spaces to the internet. There can be no reason for such
a refined balance between expression and public rights. This additional deterrence: none that would justify the increase in
the penalties. This issue, too, requires better comment from (c) The entire Section 4(c)(1) on cybersex;
all the parties and a fuller and more deliberate deliberation (d) Section 5 as it relates to Sections 4(c)(1) and 4(c)(4);
from this court. (e) Section 6 as it increases the penalties to Sections
Further comment from the parties will allow us to fully 4(c)(1) and 4(c)(4);
appreciate the nuances, layers, and dimensions occasioned by (f) Section 7 as it allows impermissibly countless
the various platforms in the internet that color the seemingly prosecution of Sections 4(c)(1) and 4(c)(4); and
simple issues involved in this case. We have to be open to (g) Section 12 on warrantless real-time traffic data
understanding the context of these issues from parties that surveillance.
may have used the internet in a more pervasive manner and Likewise, I maintain my dissent with the majority’s
are more familiar with the terrain than the members of this finding that Section 4(c)(3) on Unsolicited Commercial
court. Comment from the other parties could have enlightened Advertising is unconstitutional.
us further. We lose nothing with better clarification of context Moreover, I maintain my vote to dismiss the rest of the
from the parties. constitutional challenges against the other provisions
_______________ in Republic Act No. 10175 as raised in the consolidated
17 Respondents, represented by the Office of the Solicitor General, in their
petitions for not being justiciable in the absence of an
Motion for Partial Reconsideration, pp. 5-12.
18 See discussion in J. Leonen’s Dissenting and Concurring actual case or controversy.170
Opinion, Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014, Motions for Reconsideration denied with finality.
716 SCRA 237, p. 674. Notes.—Prior restraint refers to official governmental
169
restrictions on the press or other forms of expression in
ACCORDINGLY, I vote against the issuance, at this
advance of actual publication or dissemination; Not all prior
juncture, of a resolution denying, all seven (7) Motions
restraints on speech are invalid. (Newsounds Broadcasting
for Partial Reconsideration and the Motion for
Network, Inc. vs. Dy, 583 SCRA 333 [2009])
Reconsideration for lack of merit. I also vote
Expression in media such as print or the Internet is not
to REQUIRE all the parties to comment on the seven (7)
burdened by such requirements as congressional franchises or
Motions for Partial Reconsideration and the Motion for
administrative licenses which bear upon broadcast media.
Reconsideration within a non-extendible period of thirty (30)
(Id.)
days from notice.
——o0o——
I maintain the vote I manifested in my Dissenting and
Concurring Opinion to the February 18, 2014 decision. © Copyright 2018 Central Book Supply, Inc. All rights reserved.
Thus, I vote to declare as unconstitutional for being
overbroad and violative of Article III, Section 4 of
the Constitution the following provisions of Republic
Act No. 10175 or the Cybercrime Prevention Act of 2012:
(a) The entire Section 19 or the “take down” provision;
(b) The entire Section 4(c)(4) on cyber libel as well as
Articles 353, 354 and 355 on libel of the Revised Penal
Code;
subverts democratic self-government.—These decisions come down
to this: the State can prohibit campaigning outside a certain period
as well as campaigning within a certain place. For unlimited
VOL. 288, MARCH 31, 1998 447 expenditure for political advertising in the mass media skews the
Osmeña vs. Commission on Elections political process and subverts democratic self-government. What is
G.R. No. 132231. March 31, 1998. *
bad is if the law prohibits campaigning by certain candidates
EMILIO M.R. OSMEÑA and PABLO P. GARCIA, because of the views expressed in the ad. Content regulation cannot
petitioners, vs.THE COMMISSION ON ELECTIONS, be done in the absence of any compelling reason.
respondent. Same; Same; Same; Same; The main purpose of §11(b) is
Constitutional Law; Election Law; Freedom of regulatory, and any restriction on speech is only incidental, no more
Expression; Political “Ad Ban”; Words and Phrases; The term than is necessary to achieve its purpose of promoting equality of
political “ad ban,” when used to describe §11(b) of R.A. No. 6646, is opportunity in the use of mass media for political advertising.—The
misleading—there is no suppression of political ads but only a main purpose of §11(b)is regulatory. Any restriction on speech is
regulation of the time and manner of advertising.—The term only incidental, and it is no more than is necessary to achieve its
political “ad ban,” when used to describe §11(b) of R.A. No. 6646, is purpose of promoting equality of opportunity in the use of mass
misleading, for even as §11(b) prohibits the sale or donation of print media for political advertising. The restriction on speech, as pointed
space and air time to political candidates, it mandates the out in NPC, is limited both as to time and as to scope.
COMELEC to procure and itself allocate to the candidates space Same; Same; Same; Same; The notion that the government
and time in the media. There is no suppression of political ads but may restrict the speech of some in order to enhance the relative voice
only a regulation of the time and manner of advertising. of others may be foreign to the American Constitution but it is not to
Same; Same; Same; Same; The validity of regulations of time, the Philippine Constitution, being in fact an animating principle of
place and manner, under well-defined standards, is well-nigh that document.—But do we really believe in that? That statement
beyond question.—On the other hand, the validity of regulations of was made to justify striking down a limit on campaign expenditure
time, on the theory that money is speech. Do those who endorse the view
that government may not restrict the speech of some in order to
____________________________ enhance the relative voice of others also think that the campaign
expenditure limitation found in our election laws is
*EN BANC. unconstitutional? How about the principle of one person, one vote,
448
is this not based on the political equality of voters? Voting after all
448 SUPREME COURT REPORTS ANNOTATED is speech. We speak of it as the voice of the people—even of God.
Osmeña vs. Commission on Elections The notion that the govern-
place and manner, under well-defined standards, is well-nigh 449
beyond question. What is involved here is simply regulation of this VOL. 288, MARCH 31, 1998 449
nature. Instead of leaving candidates to advertise freely in the mass Osmeña vs. Commission on Elections
media, the law provides for allocation, by the COMELEC, of print ment may restrict the speech of some in order to enhance the
space and air time to give all candidates equal time and space for relative voice of others may be foreign to the American
the purpose of ensuring “free, orderly, honest, peaceful, and credible Constitution. It is not to the Philippine Constitution, being in fact
elections.” an animating principle of that document.
Same; Same; Same; Same; Unlimited expenditure for political Same; Same; Same; Same; Separation of Powers; Well-settled
advertising in the mass media skews the political process and is the rule that the choice of remedies for an admitted social malady
requiring government action belongs to Congress, and the remedy sufficiently justified if it is within the constitutional power of the
prescribed by it, unless clearly shown to be repugnant to Government, if it furthers an important or substantial
fundamental law, must be respected.—It is finally argued that governmental interest; if the governmental interest is unrelated to
COMELEC Space and COMELEC Time are ineffectual. It is the suppression of free expression; and if the incident restriction on
claimed that people hardly read or watch or listen to them. Again, alleged First Amendment freedoms is no greater than is essential
this is a factual assertion without any empirical basis to support it. to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88
What is more, it is an assertion concerning the adequacy or S Ct 1673. City Council v. Taxpayers For Vincent, 466 US 789, 80
necessity of the law which should be addressed to Congress. Well- L Ed 2d 772, 104 S Ct 2118 [1984]) This test was actually
settled is the rule that the choice of remedies for an admitted social formulated in United States v. O’Brien. It is an appropriate test for
malady requiring government action belongs to Congress. The restrictions on speech which, like §11(b), are content-neutral.
remedy prescribed by it, unless clearly shown to be repugnant to Unlike content-based restrictions, they are not imposed because of
fundamental law, must be respected. As shown in this case, §11(b) the content of the speech. For this reason, content-neutral
of R.A. 6646 is a permissible restriction on the freedom of speech, of restrictions are tests demanding standards. For example, a rule
expression and of the press. such as that involved in Sanidad v. COMELEC, prohibiting
Same; Same; Same; Same; Same; The validity of a law cannot columnists, commentators, and announcers from campaigning
be made to depend on the faithful compliance of those charged with either for or against an issue in a plebiscite must have a compelling
its enforcement but by appropriate constitutional provisions.—To be reason to support it, or it will not pass muster under strict scrutiny.
sure, this Court did not hold in PPI v. COMELEC that it should not These restrictions, it will be seen, are censorial and therefore they
procure newspaper space for allocation to candidates. What it ruled bear a heavy presumption of constitutional invalidity. In addition,
is that the COMELEC cannot procure print space without paying they will be tested for possible overbreadth and vagueness.
just compensation. Whether by its manifestation the COMELEC Same; Same; Same; Same; Same; Content-neutral regulations
meant it is not going to buy print space or only that it will not need only a substantial governmental interest to support them, and
require newspapers to donate free of charge print space is not clear a deferential standard of review will suffice to test their validity.—
from the manifestation. It is to be presumed that the COMELEC, It is apparent that these doctrines have no application to content-
in accordance with its mandate under §11(b)of R.A. No. 6646 and neutral regulations which, like §11(b), are not concerned with the
§90 of the Omnibus Election Code, will procure print space for content of the speech. These regulations need only a substantial
allocation to candidates, paying just compensation to newspapers governmental interest to support them. A deferential standard of
providing print space. In any event, the validity of a law cannot be review will suffice to test their validity.
made to depend on the faithful compliance of those charged with its Same; Same; Same; Same; Clear and Present Danger Test; The
enforcement but by appropriate constitutional provisions. There is clear-and-present-danger test is not a sovereign remedy for all free
a remedy for such lapse if it should happen. speech problems—it is inappropriate as a test for determining the
Same; Same; Same; Same; Test for Content-Neutral constitutional validity of laws which are not concerned with the
Restrictions.—In Adiong v. COMELEC this Court quoted the content of political ads but only with their incidents.—Justice
following from the decision of the U.S. Supreme Court in a case Panganiban’s dissent invokes the clear-and-present-danger test
sustaining a Los and argues that “media ads do not partake of the ‘real substantive
450 evil’ that the state has a right to prevent and that justifies the
450 SUPREME COURT REPORTS ANNOTATED curtailment of the people’s cardinal right to choose their means of
Osmeña vs. Commission on Elections expression and of access to information.” The clear-and-present-
Angeles City ordinance which prohibited the posting of danger test
campaign signs on public property: A government regulation is 451
VOL. 288, MARCH 31, 1998 451 Constitution.—Political equality is a touchstone of democracy. The
Osmeña vs. Commission on Elections guaranty of freedom of speech should not be used to frustrate
is not, however, a sovereign remedy for all free speech legislative attempts to level the playing field in politics. R.A. No.
problems. As has been pointed out by a thoughtful student of 6646 does not curtail speech as it no more than prevents the abusive
constitutional law, it was originally formulated for the criminal law use of wealth by the rich to
452
and only later appropriated for free speech cases. For the criminal
law is necessarily concerned with the line at which innocent
452 SUPREME COURT REPORTS ANNOTATED
preparation ends and a guilty conspiracy or attempt begins. Osmeña vs. Commission on Elections
Clearly, it is inappropriate as a test for determining the frustrate the poor candidate’s access to media. It seems to me
constitutional validity of laws which, like §11(b) of R.A. No. 6646, selfevident that if Congress can regulate the abuse of money in the
are not concerned with the content of political ads but only with economic market so can it regulate its misuse in the political
their incidents. To apply the clear-and-presentdanger test to such freemarket. Money talks in politics but it is not the specie of speech
regulatory measures would be like using a sledgehammer to drive sanctified in our Constitution. If we allow money to monopolize
a nail when a regular hammer is all that is needed. media, the political freemarket will cease to be a market of ideas
Same; Same; Same; Same; Section 11(b) of R.A. No. 6646 is a but a market for influence by the rich. I do not read freedom of
valid exercise of the power of the State to regulate media of speech as meaning more speech for the rich for freedom of speech is
communication or information for the purpose of ensuring equal not guaranteed only to those who can afford its exercise. There
opportunity, time and space for political campaigns.—The reason ought to be no quarrel with the proposition that freedom of speech
for this difference in the level of justification for the restriction of will be a chimera if Congress does not open the opportunities for its
speech is that content-based restrictions distort public debate, have exercise. When the opportunities for its exercise are obstructed by
improper motivation, and are usually imposed because of fear of the money of the rich, it is the duty of Congress to regulate the
how people will react to a particular speech. No such reasons misuse of money—for in the political marketplace of ideas, when
underlie contentneutral regulations, like regulations of time, place money win, we lose.
and manner of holding public assemblies under B.P. Blg. 880, the Same; Same; Same; Same; The world in which an essentially
Public Assembly Act of 1985. Applying the O’Brien test in this case, rationalist philosophy of the first amendment was born has
we find that §11(b) of R.A. No. 6646 is a valid exercise of the power vanished and what was rationalism is now romance.—Let us not
of the State to regulate media of communication or information for also close our eyes to the reality that in underdeveloped countries
the purpose of ensuring equal opportunity, time and space for where sharp disparities in wealth exist, the threat to freedom of
political campaigns; that the regulation is unrelated to the speech comes not only from the government but from vested
suppression of speech; that any restriction on freedom of expression interests that own and control the media. Today, freedom of speech
is only incidental and no more than is necessary to achieve the can be restrained not only by the exercise of public power but also
purpose of promoting equality. by private power. Thus, we should be equally vigilant in protecting
freedom of speech from public and private restraints. The
PUNO, J., Separate Concurring Opinion observation of a legal scholar is worth meditating, viz.: “With the
development of private restraints on free expression, the idea of a
Constitutional Law; Election Law; Freedom of free marketplace where ideas can compete on their merits has
Expression; Political “Ad Ban”; It seems to me self-evident that if become just as unrealistic in the twentieth century as the economic
Congress can regulate the abuse of money in the economic market so theory of perfect competition. The world in which an essentially
can it regulate its misuse in the political freemarket-money talks in rationalist philosophy of the first amendment was born has
politics but it is not the specie of speech sanctified in our vanished and what was rationalism is now romance.”
VITUG, J., Separate Opinion brows. It is the burden of the respondent . . . to overthrow this
presumption. If it fails to discharge this burden, its act of censorship
Constitutional Law; Election Law; Freedom of will be struck down.” NPC v. COMELEC, insofar as it bestows a
Expression; Political “Ad Ban”; Separation of Powers; The wisdom presumption of validity upon a statute authorizing COMELEC to
in the enactment of the law, i.e., that which the legislature deems to infringe upon the right of free speech and free press, constitutes a
be best in giving life to the Constitutional mandate, is not for the departure from this Court’s previous rulings as to mandate its re-
Court to question; it is a matter that lies beyond the normal examination.
prerogatives of the Court to pass upon.—The case is not about a fight Same; Same; Same; Same; The ad ban encourages corruption
between the “rich” and the of the mass media by candidates who procure paid hacks,
453 masquerading as legitimate journalists, to sing them paeans to the
VOL. 288, MARCH 31, 1998 453 high heavens.—Not to be overlooked is the stark truth that the
Osmeña vs. Commission on Elections media itself is partisan. In a study commissioned by the COMELEC
“poor” or between the “powerful” and the “weak” in our society itself to determine whether certain newspapers adhered to the
but it is to me a genuine attempt on the part of Congress and the principles of fairness and impartiality in their reportage of the
Commission on Elections to ensure that all candidates are given an presidential can-
equal chance to media coverage and thereby be equally perceived 454
as giving real life to the candidates’ right of free expression rather 454 SUPREME COURT REPORTS ANNOTATED
than being viewed as an undue restriction of that freedom. The Osmeña vs. Commission on Elections
wisdom in the enactment of the law, i.e., that which the legislature didates in the 1992 elections, the results disclosed that
deems to be best in giving life to the Constitutional mandate, is not newspapers showed biases for or against certain candidates. Hence,
for the Court to question; it is a matter that lies beyond the normal the contention that “Section 11(b) does not cut off the flow of media
prerogatives of the Court to pass upon. reporting, opinion or commentary about candidates, their
qualifications and platforms and promises” simply is illusory.
ROMERO, J., Dissenting Opinion Editorial policy will always ensure that favored candidates receive
prominent coverage while less favored ones will get minimal
Constitutional Law; Election Law; Freedom of exposure, if at all. This underscores the need to give candidates the
Expression; Political “Ad Ban”; NPC v. COMELEC, insofar as it freedom to advertise, if only to counteract negative reporting with
bestows a presumption of validity upon a statute authorizing paid advertisements, which they cannot have recourse to with the
COMELEC to infringe upon the right of free speech and free press, present prohibition. Worse, the ban even encourages corruption of
constitutes a departure from the Supreme Court’s previous rulings the mass media by candidates who procure paid hacks,
as to mandate its reexamination.—This upends the familiar holding masquerading as legitimate journalists, to sing them paeans to the
that “any system of prior restraint of expression comes to this Court high heavens. Wittingly or unwittingly, the mass media, to the
bearing a heavy presumption against its constitutional validity, detriment of poor candidates, occasionally lend themselves to the
with the Government carrying a heavy burden of showing manipulative devices of the rich and influential candidates.
justification for the enforcement of such a restraint.” This Same; Same; Same; Same; Instead of equalizing opportunities
presumption was even reiterated in the recent case of Iglesia ni for public service, the prohibition not only perpetuates political
Cristo v. CA, wherein we ruled that “deeply ensconced in our inequality, but also invidiously discriminates against lesser-known
fundamental law is its hostility against all prior restraints on candidates.—More telling, the celebrities are lavished with broader
speech . . . Hence, any act that restrains speech is hobbled by the coverage from newspapers, radio and television stations, as well as
presumption of invalidity and should be greeted with furrowed via the commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, commentators or columnists, as information. Clearly, “COMELEC Space” and “COMELEC Time”
they are deemed more newsworthy by media, thus generating a self- sacrifices the right of the citizenry to be sufficiently informed
perpetuating cycle wherein political unknowns, who may be more regarding the qualifications and programs of the candidates. The
deserving of public office, campaign in relative obscurity compared net effect of Section 11(b) is, thus, a violation of the people’s right
to their more popular rivals. Instead of equalizing opportunities for to be informed on matters of public concern and makes it a palpably
public service, the prohibition not only perpetuates political unreasonable restriction on the people’s right to freedom of
inequality, but also invidiously discriminates against lesser-known expression. Not only this, the failure of “Comelec Space” and
candidates. “Comelec Time” to adequately inform the electorate, only highlights
Same; Same; Same; Same; Right to Information; The net effect the unreasonableness of the means employed to achieve the
of Section 11(b) is a violation of the people’s right to be informed on objective of equalizing opportunities for public service between rich
matters of public concern and makes it a palpably unreasonable and poor candidates.
restriction on the people’s right to freedom of expression—the failure Same; Same; Same; Same; Party List System; The ban on
of “Comelec Space” and “Comelec Time” to adequately inform the political advertisements serves as a deterrent to the development of
electorate, only highlights the unreasonableness of the means selfreliance, self-development, logistical and organizational
employed to achieve the objective of equalizing opportunities for capability on the part of sectoral parties/organizations, even as it
public service between rich and poor candidates.—Past experience inhibits them from reaching their target audiences.—Under R.A.
shows that the COMELEC has been hard put effectively informing 7941, known as the Party-List System Act, the labor, peasant,
the voting populace of the credentials, accomplishments, and fisherfolk, urban poor, indigenous cultural communities, elderly,
platforms handicapped, women, youth, veterans, overseas worker and
455 professional sectors will have the opportunity to elect
VOL. 288, MARCH 31, 1998 455 representatives to Congress. With the prohibition on political
Osmeña vs. Commission on Elections advertisements, however, those parties who wish to have their
of government of the candidates. There are 17,396 national and candidates elected as sectoral representatives, are prevented from
local elective public positions which will be contested by an directly disseminating their platforms of government through the
estimated 100,000 candidates on May 11, 1998. For national mass media. The ban on political advertisements thus
positions, the list has been trimmed down to 11 candidates for 456
president, 9 candidates for vice-president, and 40 candidates for 456 SUPREME COURT REPORTS ANNOTATED
senator. It is difficult to see how the number of candidates can be Osmeña vs. Commission on Elections
adequately accommodated by “COMELEC Space” and “COMELEC serves as a deterrent to the development of self-reliance,
Time.” Resolution No. 2983 of the COMELEC, issued in compliance selfdevelopment, logistical and organizational capability on the
with Section 92 of B.P. 881, mandates that at least thirty minutes part of sectoral parties/organizations, even as it inhibits them from
of prime time be granted to the Commission, free of charge, from reaching their target audiences. What more effective way of
February 10, 1998 until May 9, 1998. Thirty minutes of prime time depriving them of the chance of consolidating a mass base sorely
for eighty-nine days (89) is scarcely enough time to introduce needed for a fair chance of success in a highly competitive political
candidates to the voters, much less to properly inform the electorate exercise. Likewise, with the inability of the candidates to reach the
of the credentials and platforms of all candidates running for sectors they seek to represent, the right of the people belonging to
national office. Let us be reminded that those running for local these sector to be informed on matters of concern to them is likewise
elective positions will also need to use the same space and time from violated.
March 27 to May 9, 1998, and that the COMELEC itself is Same; Same; Same; Same; Section 11(b) of R.A. No. 6646 is
authorized to use the space and time to disseminate vital election unconstitutional not because we are uncertain as to whether it
actually levels the playing field for the candidates but because the components freedom of conscience, freedom of expression, and
means used to regulate freedom of expression is on all points freedom in pursuit of happiness. x x x Social justice does not
constitutionally impermissible.—The constitutional question at champion division of property or equality of economic status; what
hand is not just a simple matter of deciding whether the “adban” is it and the Constitution do guarantee are equality of economic
effective or ineffective in bridging the financial disparity between opportunity, equality of political rights, equality before the law,
the rich and poor candidates. Section 11(b) of R.A. No. 6646 strikes equality between values given and received x x x.”
at the very core of freedom of expression. It is unconstitutional not Same; Same; Same; Same; Same; Certainly, an infringement
because we are uncertain as to whether it actually levels the of the freedom of speech in a less than heroic attempt at attaining
playing field for the candidates but because the means used to social justice cannot be countenanced, for in the ultimate analysis
regulate freedom of expression is on all points constitutionally social justice cannot flourish if the people’s right to speak, to hear, to
impermissible. It tells the candidates when, where and how to know and ask for redress of grievances is watered down.—It is ironic
disseminate their ideas under pain of punishment should they that the guarantee of freedom of expression should be pitted against
refuse to comply. The implications of the ban are indeed more the constitutional provision on social justice because the freedom of
complex and far reaching than approximating equality among the speech is the most potent instrument of public opinion, not to speak
rich and poor candidates. of its being the most effective weapon for effecting political and
Same; Same; Same; Same; Social Justice; Social justice is a social reforms. Certainly, an infringement of the freedom of speech
laudable objective but it should not be used as a means to justify in a less than heroic attempt at attaining social justice cannot be
infringement of the freedom of expression if it can be achieved by countenanced, for in the ultimate analysis social justice cannot
means that do not unnecessarily trench on the individual’s flourish if the people’s right to speak, to hear, to know and ask for
fundamental right.—The repression of expression in an attempt to redress of grievances is watered down.
level the playing field between the rich and the poor candidates is Same; Same; Same; Same; While it seems a rather fair
not only unrealistic but goes beyond the permissible limits of proposition that Congress may regulate the misuse of money by
freedom of expression as enshrined in the constitution. Social limiting the candidates’ total campaign expenditures, it seems a
justice is a laudable objective but it should not be used as a means rather curious supposition that Congress through the ad ban can
to justify infringement of the freedom of expression if it can be regulate the misuse of money by telling the candidates how, when
achieved by means that do not unnecessarily trench on the and where to use their financial resources for political campaigns.—
individual’s fundamental right. The case of Guido v. Rural Progress The ad ban, undoubtedly, could hardly be considered as a
Administration, is particularly enlightening. In said case, we had regulation drawn with sufficient specificity to serve compelling
occasion to state that: “Hand in hand with the announced principle, governmental interest inasmuch as it imposes a complete
herein invoked, that prohibition on the use of paid political advertisements except
457 through Comelec time and space despite the fact that Congress has
VOL. 288, MARCH 31, 1998 457 already seen fit to impose a ceiling on the candidates’ total
Osmeña vs. Commission on Elections campaign expenditures. While it seems a rather fair proposition
‘the promotion of social justice to insure the well being and that Congress may regulate the misuse of money by limiting the
economic security of all people should be the concern of the state,’ candidates’ total campaign expenditures, it seems a
is a declaration with which the former should be reconciled, that 458
‘the Philippines is a Republican state’ created to secure to the 458 SUPREME COURT REPORTS ANNOTATED
Filipino people ‘the blessings in independence under a regime of Osmeña vs. Commission on Elections
justice, liberty and democracy.’ Democracy as a way of life rather curious supposition that Congress through the adban
enshrined in the Constitution, embraces as its necessary can regulate the misuse of money by telling the candidates how,
when and where to use their financial resources for political enforced during winter. After all, skiing is indulged in only when
campaigns. Obviously, it is one thing to limit the total campaign the mountains slopes are covered
expenditures of the candidates and another to dictate to them as to 459
how they should spend it. VOL. 288, MARCH 31, 1998 459
Osmeña vs. Commission on Elections
PANGANIBAN, J., Dissenting Opinion with snow. To add a further parallel, a ban against the
planting of rice during the rainy season is not limited simply
Constitutional Law; Election Law; Freedom of because it covers only that season. After all, nobody plants rice
Expression; Political “Ad Ban”; It is incorrect to say that media during summer when the soil is parched. In the same manner,
advertising should be banned because only the rich can afford it or, campaign ads are not resorted to except during the campaign
for that matter, they may abuse or misuse it—candidates, whether period. And their prohibition does not become any less odious and
rich or poor, should be given the option of campaigning through less comprehensive just because the proscription applies only
media, instead of being forced to use other forms of propaganda that during the election season. Obviously, candidates need to advertise
could turn out to be less effective and more expensive.—THE POINT their qualifications and platforms only during such period. Properly
IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING understood, therefore, the prohibition is not limited in duration but
SHOULD BE BANNED BECAUSE ONLY THE RICH CAN is in fact and in truth total, complete and exhaustive.
AFFORD IT OR, FOR THAT MATTER, THEY MAY ABUSE OR Same; Same; Same; Same; Right to Information; That the
MISUSE IT. Quite the contrary, in terms of reach, pass-on freedom of the press is respected by the law and by the Comelec is
readership, multiplier effect and costbenefit advantage, media not a reason to trample upon the candidates’ constitutional right to
advertising may be the cheapest and most effective campaign free speech and the people’s right to information.—The majority also
mechanism available. I am not suggesting that every candidate claims that the prohibition is reasonable because it is limited in
should use media ads. In the final analysis, it is really up to the scope; that is, it refers only to the purchase, sale or donation of print
candidates and their campaign handlers to adopt such mode and space and air time for “campaign or other political purposes,” and
means of campaigning as their budgets and political strategies may does not restrict news reporting or commentaries by editors,
require. What I am stressing is that candidates, whether rich or columnists, reporters, and broadcasters. But the issue here is not
poor, should be given the option of campaigning through media, the freedom of media professionals. The issue is the freedom of
instead of being forced to use other forms of propaganda that could expression of candidates. That the freedom of the press is respected
turn out to be less effective and more expensive. by the law and by the Comelec is not a reason to trample upon the
Same; Same; Same; Same; A political advertisement is candidates’ constitutional right to free speech and the people’s right
relevant only during the campaign period, not before and not after— to information. In this light, the majority’s contention is a clear case
properly understood, the prohibition is not limited in duration but of non sequitur. Media ads do not partake of the “real substantive
is in fact and in truth total, complete and exhaustive.—The ad ban evil” that the state has a right to prevent and that justifies the
is constitutional because, according to the majority, it is limited in curtailment of the people’s cardinal right to choose their means of
duration for the reason that it is enforced only during the election expression and of access to information.
period. In my humble view and with all due respect, this is both Same; Same; Same; Same; Far from equalizing campaign
erroneous and illogical. A political advertisement is relevant only opportunities, the ban on media advertising favors the rich (and the
during the campaign period—not before and not after. As popular) who can afford the more expensive and burdensome forms
petitioners put it, a ban on mountain-skiing during the winter of propaganda, against the poor (and the unknown) who cannot.—
season cannot be said to be limited in duration, just because it is To say that the prohibition levels the playing field for the rich and
the poor is to indulge in a theoretical assumption totally devoid of
factual basis. On the contrary, media advertising may be— deviated from stare decisisand reversed previous doctrines and
depending on a contender’s propaganda strategy—the cheapest, decisions. It should do no less in the present case.
most practical and most effective campaign medium, especially for Same; Same; Same; Same; If elections must be rid of
national candidates. By completely denying this medium to both patronage, personalities and popularity as the main criteria of the
the rich and the poor, this Court has not leveled the playing field. people’s choice, we must allow candidates every opportunity to
It has effectively educate the voters; The ad ban is regressive, repressive and
460 deceptive—it has no place in our constitutional democracy.—
460 SUPREME COURT REPORTS ANNOTATED Elections can be free, honest and credible not only because of the
Osmeña vs. Commission on Elections absence of the three execrable “G’s” or “guns, goons and gold.”
abolished it! Far from equalizing campaign opportunities, the Beyond this, the integrity and effec-
ban on media advertising actually favors the rich (and the popular) 461
who can afford the more expensive and burdensome forms of VOL. 288, MARCH 31, 1998 461
propaganda, against the poor (and the unknown) who cannot. Osmeña vs. Commission on Elections
Same; Same; Same; Same; Comelec Time; Comelec Space; The tivity of electoral democracy depend upon the availability of
free things in life are not always the best—they may just be a information and education touching on three good “P’s”—principles,
bureaucratic waste of resources.—The allegation that the platforms and programs of the candidates. Indeed, an intelligent
prohibition is reasonable because it is limited in duration and scope vote presupposes a well-informed voter. If elections must be rid of
is itself most unreasonable, bereft as it is of logic and basis. Even patronage, personalities and popularity as the main criteria of the
more shallow is the argument that the Comelec-given media time people’s choice, we must allow candidates every opportunity to
and space compensate for such abridgment. In fact, the Comelec is educate the voters. And corollarily, the people must be accorded every
not even procuring any newspaper space. In any event, the fact that access to such information without much effort and expense on their
not even the poorest candidates have applied for available part. With all due respect, I submit that the ad ban is regressive,
opportunities is the best testament to its dubiousness. That repressive and deceptive. It has no place in our constitutional
petitioners who are seasoned political leaders prefer to pay for their democracy.
own media ads rather than to avail themselves of the Comelec
freebies refutes the majority’s thesis of compensation. Indeed, the SPECIAL CIVIL ACTION in the Supreme Court.
free things in life are not always the best. They may just be a Prohibition.
bureaucratic waste of resources.
Same; Same; Same; Same; Stare Decisis; More important than The facts are stated in the opinion of the Court.
consistency and stability are the verity, integrity and correctness of Garcia, Garcia and Ong Vaño Law Offices and Pablo
jurisprudence.—Before I close, a word about stare decisis. In the John Garcia, Jr. for petitioners.
present case, the Court is maintaining the ad ban to be consistent Fernando Ma. Alberto for petitioners TELEBAR and
with its previous holding in NPC vs. Comelec. Thus, respondent
GMA Network, Inc.
urges reverence for the stability of judicial doctrines. I submit,
however, that more important than consistency and stability are
MENDOZA, J.:
the verity, integrity and correctness of jurisprudence. As Dean
Roscoe Pound explains, “Law must be stable but it cannot stand
This is a petition for prohibition, seeking a reexamination of
still.” Verily, it must correct itself and move in cadence with the
the validity of §11(b) of R.A. No. 6646, the Electoral Reforms
march of the electronic age. Error and illogic should not be
perpetuated. After all, the Supreme Court, in many cases, has Law of 1987, which prohibits mass media from selling or
giving free of charge print space or air time for campaign or invalidate the major premise of our prior decision, petitioners
other political purposes, except to the Commission on now say “there is no need for ‘empirical data’ to determine
Elections. Petitioners are candidates for public office in the
1 whether the political ad ban offends the Constitution or
forthcoming elections. Petitioner Emilio M.R. Osmeña is not.” Instead they make arguments from which it is clear that
6

candidate for President of the Philippines, while petitioner their dis-


Pablo P. Garcia is governor of Cebu Province, seeking
____________________________
reelection. They contend that events after the ruling
in National Press Club v. Commission on Elections “have 2
4 Art. III of the Constitution provides:
called into question the validity of the very premises of that SEC. 4. No law shall be passed abridging the freedom of speech, of
[decision].” 3 expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances. A related provision
____________________________ states:
SEC. 7. The right of the people to information on matters of public concern
1 As petitioners filed their petition before they filed certificates of shall be recognized. Access to official records, and to documents, and papers
candidacy, they assert an interest in this suit “as taxpayers and registered pertaining to official acts, transactions, or decisions, as well as to government
voters” and “as prospective candidates.” Rollo, p. 6. research data used as basis for policy development, shall be afforded the
2 207 SCRA 1 (1992).
citizen, subject to such limitations as may be provided by law.
5 Rollo, p. 17.
3 Rollo, p. 3.
6 Memorandum for Petitioners, p. 21.
462
463
462 SUPREME COURT REPORTS ANNOTATED
VOL. 288, MARCH 31, 1998 463
Osmeña vs. Commission on Elections
Osmeña vs. Commission on Elections
There Is No Case or Controversy to Decide,
agreement is with the opinion of the Court on the
Only an Academic Discussion to Hold
constitutionality of §11(b) of R.A. No. 6646 and that what they
NPC v. COMELEC upheld the validity of §11(b) of R.A. No.
seek is a reargument on the same issue already decided in
6646 against claims that it abridged freedom of speech and of
that case. What is more, some of the arguments were already
the press. In urging a reexamination of that ruling,
4

considered and rejected in the NPCcase. 7

petitioners claim that experience in the last five years since


Indeed, petitioners do not complain of any harm suffered
the decision in that case has shown the “undesirable effects”
as a result of the operation of the law. They do not complain
of the law because “the ban on political advertising has not
that they have in any way been disadvantaged as a result of
only failed to level the playing field, [but] actually worked to
the ban on media advertising. Their contention that, contrary
the grave disadvantage of the poor candidate[s]” by depriving
5

to the holding in NPC,§11(b) works to the disadvantage of


them of a medium which they can afford to pay for while their
candidates who do not have enough resources to wage a
more affluent rivals can always resort to other means of
campaign outside of mass media can hardly apply to them.
reaching voters like airplanes, boats, rallies, parades, and
Their financial ability to sustain a long drawn-out campaign,
handbills.
using means other than the mass media to communicate with
No empirical data have been presented by petitioners to
voters, cannot be doubted. If at all, it is candidates like
back up their claim, however. Argumentation is made at the
intervenor Roger Panotes, who is running for mayor of Daet,
theoretical and not the practical level. Unable to show the
Cama-
“experience” and “subsequent events” which they claim
____________________________ No Ad Ban, Only a Substitution of COMELEC
Space and COMELEC Time for the Advertising
7 Thus, this Court held in NPC v. COMELEC:
My learned brother in the Court Cruz, J. remonstrates, however, that “[t]he financial Page and Commercials in Mass Media
disparity among the candidates is a fact of life that cannot be corrected by legislation The term political “ad ban,” when used to describe §11(b) of
except only by the limitation of their respective expenses to a common maximum. The
flaw in the prohibition under challenge is that while the rich candidate is barred from
R.A. No. 6646, is misleading, for even as §11(b) prohibits the
buying mass media coverage, it nevertheless allows him to spend his funds on other sale or donation of print space and air time to political
campaign activities also inaccessible to his straitened rival.” True enough Section 11(b) candidates, it mandates the COMELEC to procure and itself
does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election
Code, place political candidates on complete and perfect equality inter se without regard allocate to the candidates space and time in the media. There
to their financial affluence or lack thereof. But a regulatory measure that is less than is no suppression of political ads but only a regulation of the
perfectly comprehensive or which does to completely obliterate the evil sought to be
remedied, is not for that reason alone constitutionally infirm. The Constitution does time and manner of advertising.
not, as it cannot, exact perfection in government regulation. All it requires, in accepted Thus, §11(b) states:
doctrine, is that the regulatory measure under challenge bear a reasonable nexus with
the constitutionally sanctioned objective. That the supervision or regulation of ____________________________
communication and information media is not, in itself, a forbidden modality is made
clear by the Constitution itself in Article IX(C)(4), 207 SCRA at 14.
464 Answer-in-Intervention, p. 2.
8

Philippine Trust Co. v. Mitchell, 50 Phil. 30 (1927); Kilosbayan v.


9

464 SUPREME COURT REPORTS ANNOTATED Morato, 246 SCRA 540 (1995).
Osmeña vs. Commission on Elections 465
rines Norte, who can complain against §11(b) of R.A. No. 6646. VOL. 288, MARCH 31, 1998 465
But Panotes is for the law which, he says, has “to some extent, Osmeña vs. Commission on Elections
reduced the advantages of moneyed politicians and parties Prohibited Forms of Election Propaganda.—In addition to the forms
over their rivals who are similarly situated as ROGER of election propaganda prohibited in Section 85 of Batas Pambansa
PANOTES.” He claims that “the elimination of this Blg. 881, it shall be unlawful:
substantial advantage is one reason why ROGER PANOTES ....
and others similarly situated have dared to seek an elective (b) for any newspapers, radio broadcasting or television station,
or other mass media, or any person making use of the mass media
position this coming elections.” 8

to sell or to give free of charge print space or air time for campaign
What petitioners seek is not the adjudication of a case but
or other political purposes except to the Commission as provided
simply the holding of an academic exercise. And since a under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass
majority of the present Court is unpersuaded that its decision media columnist, commentator, announcer or personality who is a
in NPC is founded in error, it will suffice for present purposes candidate for any elective public office shall take a leave of absence
simply to reaffirm the ruling in that case. Stare decisis et non from his work as such during the campaign period.
quieta movere. This is what makes the present case different On the other hand, the Omnibus Election Code provisions
from the overruling decisions invoked by petitioners.
9
referred to in §11(b) read:
Nevertheless, we have undertaken to revisit the decision SEC. 90. Comelec space.—The Commission shall procure space in
in NPC v. COMELEC in order to clarify our own at least one newspaper of general circulation in every province or
understanding of its reach and set forth a theory of freedom city: Provided, however, That in the absence of said newspaper,
of speech. publication shall be done in any other magazine or periodical in said
province or city, which shall be known as “Comelec Space” wherein
candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission In Adiong v. COMELEC the Court struck down a regulation
12

among all candidates within the area in which the newspaper is of the COMELEC which prohibited the use of campaign decals
circulated. (Sec. 45, 1978 EC). and stickers on mobile units, allowing their location only in
SEC. 92. Comelec time.—The Commission shall procure radio the COMELEC common poster area or billboard, at the
and television time to be known as “Comelec Time” which shall be
campaign headquarters of the candidate or his political party,
allocated equally and impartially among the candidates within the
or at his residence. The Court found the restriction “so broad
area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television that it encompasses even the citizen’s private property, which
stations are hereby amended so as to provide radio or television in this case is a privately-owned car.” Nor was there a
13

time, free of charge, during the period of the campaign. (Sec. 46, substantial governmental interest justifying the restriction.
1978 EC) [T]he constitutional objective to give a rich candidate and a poor
The law’s concern is not with the message or content of the ad candidate equal opportunity to inform the electorate as regards
but with ensuring media equality between candidates with their candidacies, mandated by Article II, Section 26 and Article
XIII, Section 1 in relation to Article IX(c) Section 4 of the
“deep pockets,” as Justice Feliciano called them in his opinion
Constitution, is not impaired by posting decals and stickers on cars
of the Court in NPC, and those with less resources. The law
10
and other private vehicles. Compared to the paramount interest of
____________________________ the State in

____________________________
207 SCRA 1, 13-14 (1992).
10

466
11 35 SCRA 285 (1970).
466 SUPREME COURT REPORTS ANNOTATED 12 207 SCRA 712 (1992).
13 Id., at 720.
Osmeña vs. Commission on Elections
467
is part of a package of electoral reforms adopted in 1987.
Actually, similar effort was made in 1970 to equalize the
VOL. 288, MARCH 31, 1998 467
opportunity of candidates to advertise themselves and their Osmeña vs. Commission on Elections
programs of government by requiring the COMELEC to have guaranteeing freedom of expression, any financial considerations
behind the regulation are of marginal significance.
a COMELEC space in newspapers, magazines, and
14

Mutuc v. COMELEC is of a piece with Adiong. An order of


periodicals and prohibiting candidates to advertise outside
15

the COMELEC prohibiting the playing of taped campaign


such space, unless the names of all the other candidates in the
jingles through sound systems mounted on mobile units was
district in which the candidate is running are mentioned “with
held to be an invalid prior restraint without any apparent
equal prominence.” The validity of the law was challenged
governmental interest to promote, as the restriction did not
in Badoy, Jr. v. COMELEC. The voting was equally divided
11

simply regulate time, place or manner but imposed an


(5-5), however, with the result that the validity of the law was
absolute ban on the use of the jingles. The prohibition was
deemed upheld.
There is a difference in kind and in severity between actually content-based and was for that reason bad as a prior
restraint on speech, as inhibiting as prohibiting the candidate
restrictions such as those imposed by the election law
himself to use the loudspeaker. So is a ban against newspaper
provisions in question in this case and those found to be
columnists expressing opinion on an issue in a plebiscite a
unconstitutional in the cases cited by both petitioners and the
Solicitor General, who has taken the side of petitioners.
content restriction which, unless justified by compelling newspapers or the commercial time of radio and TV stations
reason, is unconstitutional. 16 and allocates these to the candidates.
Here, on the other hand, there is no total ban on political Nor can the validity of the COMELEC take-over for such
ads, much less restriction on the content of the speech. Given temporary period be doubted. In Pruneyard Shopping Center
17

the fact that print space and air time can be controlled or v. Robbins, it was held that a court order compelling a private
18

dominated by rich candidates to the disadvantage of poor shopping center to permit use of a corner of its courtyard for
candidates, there is a substantial or legitimate governmental the purpose of distributing pamphlets or soliciting signatures
interest justifying exercise of the regulatory power of the for a petition opposing a UN resolution was valid. The order
COMELEC under Art. IX-C, §4 of the Constitution, which neither unreasonably impaired the value or use of private
provides: property nor violated the owner’s right not to be compelled to
The commission may, during the election period, supervise or express support for any viewpoint since it can always disavow
regulate the enjoyment or utilization of all franchises or permits for any connection with the message.
the operation of transportation and other public utilities, media of On the other hand, the validity of regulations of time, place
communication or information, all grants, special privileges, or and manner, under well-defined standards, is well-nigh
concessions granted by the Government or any subdivision, agency,
beyond question. What is involved here is simply regulation
19

or instrumentality thereof, including any government-owned or


of this nature. Instead of leaving candidates to advertise
controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space, freely in the mass media, the law provides for allocation, by
and the right to reply, including reasonable, equal rates therefor, the
for public information campaigns and forums among candidates in
____________________________
connection
17 In Philippine Press Institute v. COMELEC, 244 SCRA 272 (1995), we
____________________________
held that for space acquired in newspapers the COMELEC must pay just
compensation. Whether there is a similar duty to compensate for acquiring air
14 Id., at 722.
time from broadcast media is the question raised in Telecommunications and
15 36 SCRA 228 (1970).
16 Sanidad v. COMELEC, 181 SCRA 529 (1990).
Broadcast Attorneys of the Philippines v. COMELEC, G.R. No. 132922, now
pending before this Court.
468
18 447 U.S. 74, 64 L. Ed 2d 741 (1980).

468 SUPREME COURT REPORTS ANNOTATED 19 See, e.g., J.B.L. Reyes v. Bagatsing, 125 SCRA 553 (1983); Navarro v.

Osmeña vs. Commission on Elections Villegas, 31 SCRA 730 (1970); Ignacio v. Ela, 99 Phil. 346 (1956); Primicias v.
with the objective of holding free, orderly, honest, peaceful, and Fugoso, 80 Phil. 71 (1948).
469
credible elections.
The provisions in question involve no suppression of political VOL. 288, MARCH 31, 1998 469
ads. They only prohibit the sale or donation of print space and Osmeña vs. Commission on Elections
air time to candidates but require the COMELEC instead to COMELEC, of print space and air time to give all candidates
procure space and time in the mass media for allocation, free equal time and space for the purpose of ensuring “free,
of charge, to the candidates. In effect, during the election orderly, honest, peaceful, and credible elections.”
period, the COMELEC takes over the advertising page of In Gonzales v. COMELEC, the Court sustained the
20

validity of a provision of R.A. No. 4880 which in part reads:


SEC. 50-B. Limitation upon the period of Election Campaign or polling place except to vote. Indeed, §261(k) of the Omnibus
Partisan Political Activity.—It is unlawful for any person whether Election Code makes it unlawful for anyone to solicit votes in
or not a voter or candidate, or for any group, or association of the polling place and within a radius of 30 meters thereof.
persons, whether or not a political party or political committee, to These decisions come down to this: the State can prohibit
engage in an election campaign or partisan political activity except
campaigning outside a certain period as well as
during the period of one hundred twenty days immediately
campaigning withina certain place. For unlimited
preceding an election involving a public office voted for at large and
ninety days immediately preceding an election for any other expenditure for political advertising in the mass media skews
elective public office. the political process and subverts democratic self-
The term “Candidate” refers to any person aspiring for or government. What is bad is if the law prohibits campaigning
seeking an elective public office, regardless of whether or not said by certain candidates because of the views expressed in the
person has already filed his certificate of candidacy or has been ad. Content regulation cannot be done in the absence of any
nominated by any political party as its candidate. compelling reason.
The term “Election Campaign” or “Partisan Political Activity” Law Narrowly Drawn to Fit
refers to acts designed to have a candidate elected or not or promote Regulatory Purpose
the candidacy of a person or persons to a public office which shall The main purpose of §11(b) is regulatory. Any restriction on
include:
speech is only incidental, and it is no more than is necessary
to achieve its purpose of promoting equality of opportunity in
1. (a)Forming Organizations, Associations, Clubs, Committees
or other groups of persons for the purpose of soliciting votes
the use of mass media for political advertising. The restriction
and/or undertaking any campaign or propaganda for or on speech, as pointed out in NPC, is limited both as to time
against a party or candidate; and as to scope.
2. (b)Holding political conventions, caucuses, conferences, Petitioners and the dissenters make little of this on the
meetings, rallies, parades, or other similar assemblies, for ground that the regulation, which they call a ban, would be
the purpose of soliciting votes and/or undertaking any useless any other time than the election period. Petitioners
campaign or propaganda for or against a candidate or state: “[I]n testing the reasonableness of a ban on
party; . . . . mountainskiing, one cannot conclude that it is limited
because it is enforced only during the winter season.” What
22

In Valmonte v. COMELEC, on the other hand, the Court


21
makes the regulation reasonable is precisely that it applies
upheld the validity of a COMELEC resolution prohibiting only to the election period. Its enforcement outside the period
members of citizen groups or associations from entering any would make it unreasonable. More importantly, it should be
noted that a “ban on mountain skiing” would be passive in
____________________________
nature. It is like the statutory cap on campaign expenditures,
27 SCRA 835 (1969).
20 but is so unlike the real nature of §11(b), as already explained.
21 Res., G.R. No. 73551, Feb. 11, 1988. Petitioners likewise deny that §11(b) is limited in scope, as
470
they make another quaint argument:
470 SUPREME COURT REPORTS ANNOTATED
Osmeña vs. Commission on Elections ____________________________

22 Memorandum for Petitioners, p. 10.


471 Osmeña vs. Commission on Elections
VOL. 288, MARCH 31, 1998 471 Section 11(b) prohibits the sale or donation of print space and air
Osmeña vs. Commission on Elections time “for campaign or other political purposes” except to the
A candidate may court media to report and comment on his person Commission on Elections (“Comelec”). Upon the other hand,
and his programs, and media in the exercise of their discretion just Sections 90 and 92 of the Omnibus Election Code require the
might. It does not, however, follow that a candidate’s freedom of Comelec to procure “Comelec space” in newspapers of general
expression is thereby enhanced, or less abridged. If Pedro is not circulation in every province or city and “Comelec time” on radio
allowed to speak, but Juan may speak of what Pedro wishes to say, and television stations. Further, the Comelec is statutorily
the curtailment of Pedro’s freedom of expression cannot be said to commanded to allocate “Comelec space” and “Comelec time” on a
be any less limited, just because Juan has the freedom to speak. 23 free of charge, equal and impartial basis among all candidates
The premise of this argument is that §11(b) imposes a ban on within the area served by the newspaper or radio and television
media political advertising. What petitioners seem to miss is station involved. 25

that the prohibition against paid or sponsored political On the other hand, the dissent of Justice Romero in the
advertising is only half of the regulatory framework, the other present case, in batting for an “uninhibited marketplace of
half being the mandate of the COMELEC to procure print ideas,” quotes the following from Buckley v. Valeo:
space and air time so that these can be allocated free of charge [T]he concept that the government may restrict the speech of some
to the candidates. elements in our society in order to enhance the relative voice of the
others is wholly foreign to the First Amendment which was
Reform of the Marketplace of Ideas,
designed to “secure the widest possible dissemination of
Not Permissible? information from diverse and antagonistic sources” and “to assure
Petitioners argue that the reasoning of NPC is flawed, unfettered interchange of ideas for the bringing about of political
because it rests on a misconception that Art. IX-C, §4 and social changes desired by the people.” 26

mandates the absolute equality of all candidates regardless of But do we really believe in that? That statement was made to
financial status, when what this provision speaks of is justify striking down a limit on campaign expenditure on the
“equality of opportunity.” In support of this claim, petitioners theory that money is speech. Do those who endorse the view
quote the following from the opinion of the Court written by that government may not restrict the speech of some in order
Justice Feliciano: to enhance the relative voice of others also think that the
The objective which animates Section 11(b) is the equalizing, as far campaign expenditure limitation found in our election laws is 27

as practicable, the situations of rich and poor candidates by unconstitutional? How about the principle of one person, one
preventing the former from enjoying the undue advantage offered by
vote, is this not based on the political equality of voters?
28

huge campaign “war chests .” 24

Voting after all is speech. We speak of it as the voice of the


The Court meant equalizing media access, as the following
people—even of God. The notion that the government
sentences which were omitted clearly show:
____________________________
____________________________
25 Ibid.
23 Id., p. 11. 26 424 U.S. 1, 48-49, 46 L. Ed. 659, 704-705 (1976). The Solicitor General
24 207 SCRA at 7 (emphasis by petitioners).
also quotes this statement and says it is “highly persuasive in this
472 jurisdiction.” Memorandum of the OSG, p. 27.
472 SUPREME COURT REPORTS ANNOTATED 27 R.A. No. 7166, §13; OEC, §100.
See Macias v. COMELEC, 113 Phil. 1 (1961).
28 ____________________________
473
VOL. 288, MARCH 31, 1998 473 291 RECORD OF THE 1986 CONSTITUTIONAL COMMISSION 624,
Session of July 16, 1986.
Osmeña vs. Commission on Elections 474
may restrict the speech of some in order to enhance the 474 SUPREME COURT REPORTS ANNOTATED
relative voice of others may be foreign to the American Osmeña vs. Commission on Elections
Constitution. It is not to the Philippine Constitution, being in On the Claim that the Reforms
fact an animating principle of that document. Have Been Ineffectual
Indeed, Art. IX-C, §4 is not the only provision in the Petitioners contend that §11(b) is not a reasonable means for
Constitution mandating political equality. Art. XIII, §1 achieving the purpose for which it was enacted. They claim
requires Congress to give the “highest priority” to the
that instead of levelling the playing field as far as the use of
enactment of measures designed to reduce political mass media for political campaign is concerned, §11(b) has
inequalities, while Art. II, §26 declares as a fundamental abolished it. They further claim that §11(b) does not prevent
principle of our government “equal access to opportunities for rich candidates from using their superior resources to the
public service.” Access to public office will be denied to poor disadvantage of poor candidates.
candidates if they cannot even have access to mass media in All this is of course mere allegation. As stated in the
order to reach the electorate. What fortress principle trumps beginning, what petitioners claim to be the nation’s
or overrides these provisions for political equality? experience with the law is merely argumentation against its
Unless the idealism and hopes which fired the imagination validity. The claim will not bear analysis, however. Assuming
of those who framed the Constitution now appear dim to us,
that rich candidates can spend for parades, rallies,
how can the electoral reforms adopted by them to implement motorcades, airplanes and the like in order to campaign while
the Constitution, of which §11(b) of R.A. No. 6646, in relation poor candidates can only afford political ads, the gap between
to §§90 and 92 are part, be considered infringements on the two will not necessarily be reduced by allowing unlimited
freedom of speech? That the framers contemplated regulation mass media advertising because rich candidates can spend for
of political propaganda similar to §11(b) is clear from the other propaganda in addition to mass media advertising.
following portion of the sponsorship speech of Commissioner Moreover, it is not true that §11(b) has abolished the playing
Vicente B. Foz: field. What it has done, as already stated, is merely to regulate
MR. FOZ. . . .Regarding the regulation by the Commission of the
its use through COMELEC-sponsored advertising in place of
enjoyment or utilization of franchises or permits for the operation
of transportation and other public utilities, media of communication advertisements paid for by candidates or donated by their
or information, all grants, special privileges or concessions granted supporters.
by the Government, there is a provision that during the election It is finally argued that COMELEC Space and COMELEC
period, the Commission may regulate, among other things, the rates, Time are ineffectual. It is claimed that people hardly read or
reasonable free space, and time allotments for public information watch or listen to them. Again, this is a factual assertion
campaigns and forums among candidates for the purpose of without any empirical basis to support it. What is more, it is
ensuring free, orderly, honest and peaceful elections. This has to do an assertion concerning the adequacy or necessity of the law
with the media of communication or information. 29
which should be addressed to Congress. Well-settled is the
rule that the choice of remedies for an admitted social malady
requiring government action belongs to Congress. The remedy SEC. 2. Grant of “Comelec Time.”—Every radio broadcasting and
prescribed by it, unless clearly shown to be repugnant to television station operating under franchise shall grant the
fundamental law, must be respected. As shown in this case,
30 Commission, upon payment of just compensation, at least thirty
(30) minutes of prime time daily, to be known as “Comelec Time,”
____________________________ effective February 10, 1998 for candidates for President, Vice-
President and Senators, and effective March 27, 1998, for
Gonzales v. COMELEC, 27 SCRA 835 (1969).
30
candidates for local elective offices, until May 9, 1998. (Emphasis
475 added)
VOL. 288, MARCH 31, 1998 475
Osmeña vs. Commission on Elections ____________________________
§11(b)of R.A. 6646 is a permissible restriction on the freedom Compliance, p. 4.
31

of speech, of expression and of the press. 476


Dissenting, Justice Panganiban argues that advertising is 476 SUPREME COURT REPORTS ANNOTATED
the most effective means of reaching voters. He adverts to a Osmeña vs. Commission on Elections
manifestation of the COMELEC lawyer that the Commission Failure of Legislative Remedy Bespeaks
“is not procuring [Comelec Space] by virtue of the effects of of More than Congressional Inaction
the decision of this Honorable Court in the case of Philippine The fact is that efforts have been made to secure the
Press Institute (PPI) vs. Comelec, 244 SCRA 272.” 31
amendment or even repeal of §11(b) of R.A. No. 6646. No less
To be sure, this Court did not hold than five bills, were filed in the Senate in the last session of
32

in PPI v. COMELEC that it should not procure newspaper Congress for this purpose, but they all failed of passage.
space for allocation to candidates. What it ruled is that the Petitioners claim it was because Congress adjourned without
COMELEC cannot procure print space without paying just acting on them. But that is just the point. Congress obviously
compensation. Whether by its manifestation the COMELEC did not see it fit to act on the bills before it adjourned.
meant it is not going to buy print space or only that it will not We thus have a situation in which an act of Congress was
require newspapers to donate free of charge print space is not found by this Court to be valid so that those opposed to the
clear from the manifestation. It is to be presumed that the statute resorted to the legislative department. The latter
COMELEC, in accordance with its mandate under §11(b)of reconsidered the question but after doing so apparently found
R.A. No. 6646 and §90 of the Omnibus Election Code, will no reason for amending the statute and therefore did not pass
procure print space for allocation to candidates, paying just any of the bills filed to amend or repeal the statute. Must this
compensation to newspapers providing print space. Court now grant what Congress denied to them? The
In any event, the validity of a law cannot be made to legislative silence here certainly bespeaks of more than
depend on the faithful compliance of those charged with its inaction.
enforcement but by appropriate constitutional provisions. Test for Content-Neutral Restrictions 33

There is a remedy for such lapse if it should happen. In In Adiong v. COMELEC this Court quoted the following
34

addition, there is the COMELEC Time during which from the decision of the U.S. Supreme Court in a case
candidates may advertise themselves. Resolution No. 2983-A sustaining a Los Angeles City ordinance which prohibited the
of the COMELEC provides: posting of campaign signs on public property:
____________________________ need only a substantial governmental interest to support
them. A deferential standard of review will suffice to test
38
32 The bills are S. Nos. 178, 595, 856, 1177 and 1224, which were
consolidated into S. No. 2104. their validity.
33 For helpful discussion of the distinction between contentbased and Justice Panganiban’s dissent invokes the clear-
content-neutral regulations, see generally GEOFFREY R. STONE, LOUIS M. andpresent-danger test and argues that “media ads do not
SEIDMAN, CASS R. SUNSTEIN, and MARK V. TUSHNET,
partake of the ‘real substantive evil’ that the state has a right
CONSTITUTIONAL LAW 1086-1087, 1172-1183, 13231334 (1996); GERALD
GUNTHER AND KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW to prevent and that justifies the curtailment of the people’s
1203-1212 (1997); Geoffrey R. Stone, Content-Neutral Restrictions, 54 UNIV. car-
OF CHI. LAW REV. 46 (1987).
34 207 SCRA 712 (1992).
____________________________
477
VOL. 288, MARCH 31, 1998 477 35 Id., at 718 (internal quotations omitted).
36 391 U.S. 367, 20 L. Ed. 2d 672 (1968).
Osmeña vs. Commission on Elections 37 181 SCRA 529 (1990).

A government regulation is sufficiently justified if it is within the 38 See, e.g., Primicias v. Fugoso, 80 Phil. 71 (1948).

constitutional power of the Government, if it furthers an important 478


or substantial governmental interest; if the governmental interest 478 SUPREME COURT REPORTS ANNOTATED
is unrelated to the suppression of free expression; and if the Osmeña vs. Commission on Elections
incident restriction on alleged First Amendment freedoms is no
dinal right to choose their means of expression and of access
greater than is essential to the furtherance of that interest. (Id., at
377, 20 L Ed 2d 672, 88 S Ct 1673. City Council v. Taxpayers For to information.” The clear-and-present-danger test is not,
Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984]) 35
however, a sovereign remedy for all free speech problems. As
This test was actually formulated in United States v. has been pointed out by a thoughtful student of constitutional
O’Brien. It is an appropriate test for restrictions on speech
36
law, it was originally formulated for the criminal law and only
which, like §11(b), are content-neutral. Unlike content-based later appropriated for free speech cases. For the criminal law
restrictions, they are not imposed because of the content of the is necessarily concerned with the line at which innocent
speech. For this reason, content-neutral restrictions are tests preparation ends and a guilty conspiracy or attempt
demanding standards. For example, a rule such as that begins. Clearly, it is inappropriate as a test for determining
39

involved in Sanidad v. COMELEC, prohibiting columnists,


37
the constitutional validity of laws which, like §11(b) of R.A.
commentators, and announcers from campaigning either for No. 6646, are not concerned with the content of political ads
or against an issue in a plebiscite must have a compelling but only with their incidents. To apply the clear-and-present-
reason to support it, or it will not pass muster under strict danger test to such regulatory measures would be like using
scrutiny. These restrictions, it will be seen, are censorial and a sledgehammer to drive a nail when a regular hammer is all
therefore they bear a heavy presumption of constitutional that is needed.
invalidity. In addition, they will be tested for possible The reason for this difference in the level of justification for
overbreadth and vagueness. the restriction of speech is that content-based restrictions
It is apparent that these doctrines have no application to distort public debate, have improper motivation, and are
content-neutral regulations which, like §11(b), are not usually imposed because of fear of how people will react to a
concerned with the content of the speech. These regulations particular speech. No such reasons underlie content-neutral
regulations, like regulations of time, place and manner of the state can be both an enemy and a friend of speech; that it
holding public assemblies under B.P. Blg. 880, the Public can do terrible things to undermine democracy but some
Assembly Act of 1985. Applying the O’Brien test in this case, wonderful things to enhance it as well.” We hold R.A. No.
41

we find that §11(b) of R.A. No. 6646 is a valid exercise of the 6646, §11(b) to be such a democracy-enhancing measure. For
power of the State to regulate media of communication or Holmes’ marketplace of ideas can prove to be nothing but a
information for the purpose of ensuring equal opportunity, romantic illusion if the electoral process is badly skewed, if
time and space for political campaigns; that the regulation is not corrupted, by the unbridled use of money for campaign
unrelated to the suppression of speech; that any restriction on propaganda.
freedom of expression is only incidental and no more than is The petition is DISMISSED.
necessary to achieve the purpose of promoting equality. SO ORDERED.
Narvasa (C.J.), Regalado, Davide,
_______________ Jr., Bellosillo, Kapunanand Martinez, JJ., concur.
Romero, J., Please see Dissenting Opinion.
The Court is just as profoundly aware as anyone else that Melo, J., Join the Separate Opinion of Justices Puno
discussion of public issues and debate on the qualifications of and Vitug.
____________________________
____________________________
39 PAUL A. FREUND, ON UNDERSTANDING THE SUPREME 40 4 RECORD OF THE HOUSE OF REPRESENTATIVES 261 (Dec. 14,
COURT 25-26 (1949).
1987); 1 RECORD OF THE SENATE 1644 (Oct. 19, 1987).
479 41 THE IRONY OF FREE SPEECH 83 (1996).

VOL. 288, MARCH 31, 1998 479 480


Osmeña vs. Commission on Elections 480 SUPREME COURT REPORTS ANNOTATED
candidates in an election are essential to the proper Osmeña vs. Commission on Elections
functioning of the government established by our Puno, J., Please see Separate Opinion.
Constitution. But it is precisely with this awareness that we Vitug, J., Please see Separate Opinion.
think democratic efforts at reform should be seen for what Panganiban, J., Please see Dissenting Opinion.
they are: genuine efforts to enhance the political process Quisumbing and Purisima, JJ., Join in the Dissenting
rather than infringements on freedom of expression. The Opinion of Justices Romero and Panganiban.
statutory provision involved in this case is part of the reform SEPARATE CONCURRING OPINION
measures adopted in 1987 in the aftermath of EDSA. A
reform-minded Congress passed bills which were consolidated PUNO, J.:
into what is now R.A. No. 6646 with near unanimity. The
House of Representatives, of which petitioner Pablo P. Garcia In G.R. No. 132231, petitioners assail the constitutionality of
was a distinguished member, voted 96 to 1 (Rep. Eduardo Sec. 11(b) of R.A. No. 6646 and Resolution No. 2974 of the
Pilapil) in favor, while the Senate approved it 19-0. 40 COMELEC implementing said law. They contend:
In his recent book, The Irony of Free Speech, Owen Fiss
“I
speaks of “a truth that is full of irony and contradiction: that
THE POLITICAL AD BAN IS MOVED BY AN INVALID POLITICAL AD BAN HAS ABOLISHED THE PLAYING
LEGISLATIVE INTENT, ULTRA VIRES ON THE PART OF FIELD.
CONGRESS, AND VIOLATIVE OF THE VERY 2. B.THERE IS NO REASONABLE NECESSITY FOR THE
CONSTITUTIONAL PROVISION UPON WHICH IT IS SOUGHT AD BAN, BECAUSE IT DOES NOT PREVENT THE RICH
TO BE GROUNDED. CANDIDATE FROM USING HIS SUPERIOR
RESOURCES TO THE UNDUE DISADVANTAGE OF
II THE POOR CANDIDATE.
3. C.THERE IS NO REASONABLE NECESSITY FOR THE
CONTRARY TO THE HOLDING IN NATIONAL PRESS CLUB, POLITICAL AD BAN BECAUSE ADEQUATE
THE POLITICAL AD BAN IS NOT LIMITED IN TIME AND SAFEGUARDS ARE LEGALLY IN PLACE IN ORDER TO
SCOPE OF APPLICATION. PREVENT THE RICH CANDIDATE FROM TAKING
UNDUE ADVANTAGE OF HIS SUPERIOR
1. A.THE POLITICAL AD BAN IS NOT LIMITED IN RESOURCES.
DURATION; IT IS ABSOLUTE, ALL-ENCOMPASSING,
COMPREHENSIVE AND UNLIMITED. V
2. B.THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE
OF APPLICABILITY. INSOFAR AS THE CANDIDATE’S THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE
FREEDOM TO EXPRESS THROUGH THE MASS PEOPLE TO BE INFORMED ON MATTERS OF PUBLIC
MEDIA, IT IS ABSOLUTE, ALL-ENCOMPASSING, CONCERN.
COMPREHENSIVE AND UNLIMITED.
VI
481
VOL. 288, MARCH 31, 1998 481 THERE IS NO NEED FOR ‘EMPIRICAL DATA’ TO
Osmeña vs. Commission on Elections DETERMINE WHETHER THE POLITICAL AD BAN OFFENDS
THE CONSTITUTION OR NOT.”
III The Solicitor General and the petitioners-in-intervention
likewise contend that Section 11(b) of R.A. No. 6646 is
THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 unconstitutional principally because it impairs freedom of
CONSTITUTES PRIOR RESTRAINT, AND CARRIES A HEAVY speech and of the press.
PRESUMPTION AGAINST VALIDITY. 482
482 SUPREME COURT REPORTS ANNOTATED
IV Osmeña vs. Commission on Elections
THE POLITICAL AD BAN IS NOT A REASONABLE A quick glance at petitioners’ arguments against Section 11(b)
NECESSARY MEANS TO ACHIEVE THE DESIRED END. of R.A. No. 6646 will show that they are mere rehash of
arguments in the NPC case. The lack of new arguments is a
1. A.INSTEAD OF ‘LEVELING THE PLAYING FIELD,’ tribute to the brilliant majority decision and equally
INSOFAR AS THE USE OF MASS MEDIA FOR enlightening dissenting opinions in said case which
POLITICAL PURPOSES IS CONCERNED, THE petitioners now seek to reexamine. A repetition of the NPC
rationale is thus unnecessary.
I wish, however, to advert to the dissent of Madam Justice from Buckley, the Austin Court recognized the state’s
Romero which cites Buckley v. Valeo, a 1976 case where a
1 compelling interest in regulating campaign expenditure.
divided US Supreme Court ruled that limits on campaign Writing for the majority, Mr. Justice Thurgood Marshall, an
expenditures violate the guarantee of freedom of speech. The icon of libertarians declared: “Michigan identified as a serious
essence of the Buckley ruling is that “the concept that danger the significant possibility that corporate political
government may restrict the speech of some elements of expenditures will undermine the integrity of the political
society in order to enhance the relative voice of others is process, and it has implemented a narrowly tailored solution
wholly foreign to that problem.” In his concurring opinion, the last of the
to the First Amendment. . . .” A reading of American legal
2 libertarians in the US High Court, Mr. Justice Brennan, held:
literature, however, will reveal that Buckley has been widely “In MCFL, we held that a provision of the Federal Election
criticized by libertarians because its pro-business thrust has Campaign Act of 1971 (FECA), x x x similar to the Michigan
pernicious effects on efforts to achieve much needed electoral law at issue here, could not be applied constitutionally to a
reforms. Typical of the criticisms is the observation of Wright
3 small, anti-abortion advocacy group. In evaluating the First
that the Buckley Court “. . . has given protection to the Amendment challenge, however, we acknowledged the
polluting effect of money in election campaigns. As a result, legitimacy of Congress’ concern that organizations that amass
our political system may not use some of its most powerful great wealth in the economic marketplace should not gain
defenses against electoral inequalities.” The barrage of
4 unfair advantage in the political marketplace.”
criticisms caused the US Supreme Court to modify its There is less reason to apply the discredited Buckley
absolute support for free speech in Buckley. In the 1990 case decision in our setting. Section 11(b) of R.A. No. 6646 is based
of Austin v. Michigan State Chamber of on provisions of our Constitution which have no counterparts
in the US Constitution. These provisions are:
____________________________ “Art. III, Section 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political dynasties as
1 424 US 1 (1976); see also First National Bank of Boston v. Bellotti, 435
US 765(1978). may be defined by law.
2 Id., at pp. 48-49. Art. XIII, Section 1. The Congress shall give highest priority to
3 Wright, Money and the Pollution of Politics: Is the First Amendment an the enactment of measures that protect and enhance the right of all
Obstacle to Political Equality, 82 Col. L. Rev. No. 4 (May 1982); Abrogast, the people to human dignity, reduce social, economic, and political
Political Campaign Advertising and the First Amendment: A Structural- inequalities, and remove cultural inequities by equitably diffusing
Functional Analysis of Proposed Reform, 23 Akron L. Rev. 2091 (1989); Blum, wealth and political power for the common good.
The Divisible First Amendment: A Critical Functionalist Approach to
Freedom of Speech and Electoral Campaign Spending, 58 N.Y.U.L. Rev. 1273
Art. IX(c) (4). The Commission may, during the election period,
(1983). supervise or regulate the enjoyment or utilization of all franchises
4 Wright, op cit, p. 609. or permits from the operation of transportation and other
483
VOL. 288, MARCH 31, 1998 483 ____________________________

Osmeña vs. Commission on Elections 5 494 US 652 (1990).


Commerce, it upheld the constitutionality of a Michigan law
5 484
that prohibited corporations from using corporate treasury 484 SUPREME COURT REPORTS ANNOTATED
funds to support or oppose any candidate for office. Retreating Osmeña vs. Commission on Elections
public utilities, media of communication or information, all grants, country is galloping at a frightening pace. As the cost of
special privileges, or concessions granted by the Government or any election spirals at an immoral speed, the levers of political
subdivision, agency, or instrumentality thereof, including any power are wielded more and more by the wealthy alone. The
government-owned or controlled corporation or its subsidiary. Such subject law attempts to break this control by reducing the
supervision or regulation shall aim to ensure equal opportunity,
purchasing power of the peso of the rich in the political
time, and space, and the right to reply, including reasonable, equal
freemarket.
rates therefor for public information campaigns and forms among
candidates in connection with the objective of holding free, orderly, Political equality is a touchstone of democracy. The
honest, peaceful, and credible elections.” guaranty of freedom of speech should not be used to frustrate
A member of the Constitutional Commission, now our legislative attempts to level the playing field in politics. R.A.
distinguished colleague, Mr. Justice Hilario Davide, Jr., well No. 6646 does not curtail speech as it no more than prevents
explained these new wrinkles in our Constitution, viz.: the abusive use of wealth by the rich to frustrate the poor
xxx candidate’s access to media. It seems to me self-evident that
“Aware of the lamentable fact in the Philippines, no gap between if Congress can regulate the abuse of money in the economic
these two unavoidable extremes of society is more pronounced than market so can it regulate its misuse in the political
that in the field of politics, and ever mindful of the dire freemarket. Money talks in politics but it is not the specie of
consequences thereof, the framers of the present Constitution saw speech sanctified in our Constitution. If we allow money to
it fit to diffuse political power in the social justice provisions. Ours monopolize media, the political freemarket will cease to be a
has been a politics of the elite, the rich, the powerful and the market of ideas but a market for influence by the rich. I do not
pedigreed. The victory of a poor candidate in an election is almost
read freedom of speech as meaning more speech for the rich
always an exception. Arrayed against the vast resources of a
for freedom of speech is not guaranteed only to those who can
wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting chance. Of course, there have afford its exercise. There ought to be no quarrel with the
been isolated instances------but yet so few and far between------when proposition that freedom of speech will be a chimera if
poor candidates made it.’’ 6 Congress does not open the opportunities for its exercise.
He stressed that this thrust for political equality is an When the opportunities for its exercise are obstructed by the
improvement of our past Constitutions which merely sought money of the rich, it is the duty of Congress to regulate the
to establish equality in the economic and social fields. 7 misuse of money—for in the political marketplace of ideas,
It is difficult to think why such an egalitarian law like when money win, we lose.
Section 11(b) of R.A. No. 6646 should be condemned when it Let us not also close our eyes to the reality that in
equalizes the political opportunities of our people. The gap underdeveloped countries where sharp disparities in wealth
between the perfumed few and the perspiring many in our exist, the threat to freedom of speech comes not only from the
government but from vested interests that own and control
____________________________ the media. Today, freedom of speech can be restrained not
only by the exercise of public power but also by private power.
6Concurring Opinion in NPC v. COMELEC, 207 SCRA 19 (1992).
7Id., at p. 18. Thus, we should be equally vigilant in protecting freedom of
485 speech from public and private restraints. The observation of
VOL. 288, MARCH 31, 1998 485 a legal scholar is worth meditating, viz.: “With the
Osmeña vs. Commission on Elections development of private restraints on free expression, the idea
of a free marketplace where ideas can compete on their merits 8 Barron, Access to the Press—A New First Amendment Right, 80 Harv. L. Rev.

1641 (1967).
has become just as unrealistic in the twentieth century as the 487
economic VOL. 288, MARCH 31, 1998 487
486
486 SUPREME COURT REPORTS ANNOTATED Osmeña vs. Commission on Elections
other political purposes except to the Commission as provided
Osmeña vs. Commission on Elections under Sections 90 and 90 of Batas Pambansa Blg. 881. Any mass
theory of perfect competition. The world in which an media columnist, commentator, announcer or personality who is a
essentially rationalist philosophy of the first amendment was candidate for any elective public office shall take a leave of absence
born has vanished and what was rationalism is now from his work as such during the campaign period.”
romance.” 8 “SEC. 18. Prohibited forms of election propaganda.—It is
I vote to dismiss the petition. unlawful:
SEPARATE OPINION “x x x xxx xxx
“e. For any radio broadcasting or television station or any person
VITUG, J.: making use of broadcast media to sell or give, free of charge, any air
time for campaign and other political purposes, except thru
I share the opinion of those who continue to uphold the ‘COMELEC Time,’ allotted to the Commission pursuant to Section
decision in the National Press Club vs. Commission on 92 of the Omnibus Election Code.”
Elections case that has sustained the validity of Section 11(b) I see, however, in the above provisions a faithful compliance
of Republic Act (“R.A.”) No. 6646, otherwise also known as the and due observance of the language, intent and spirit of the
Electoral Reforms Law of 1987. Constitution itself, Article IX(C)(4) of which reads:
Petitioners, in seeking a re-examination of the decision of “Sec. 4. The Commission [on Elections] may, during the election
period, supervise or regulate the enjoyment or utilization of all
this Court in the National Press Club case, no more than
franchises or permits for the operation of transportation and other
invoke anew Section 4, Article III, of the Constitution to the
public utilities, media of communication or information, all grants,
effect that— special privileges, or concessions granted by the Government or any
“No law shall be passed abridging the freedom of speech, of subdivision, agency, or instrumentality thereof, including any
expression, or of press, on the right of the people peaceably to government-owned or controlled corporation or its subsidiary.
assemble and petition the government for redress of grievances.” Such supervision or regulation shall aim to ensure equal
It is their submission that Section 11(b) of R.A. No. 6646 and opportunity, time, and space, and the right to reply, including
Section 18(e) of Comelec Resolution No. 2974 should be reasonable, equal rates therefor, for public information campaigns
declared unconstitutional. These contested provisions state: and forums among candidates in connection with the objective of
“Sec. 11. Prohibited forms of election propaganda.—In addition to holding free, orderly, honest, peaceful, and credible elections.”
the forms of election propaganda prohibited under Section 85 of (Italics supplied.)
Batas Pambansa Blg. 881, it shall be unlawful; It might be worth mentioning that Section 26, Article II, of the
“x x x xxx xxx Constitution also states that the “State shall guarantee equal
“b) for any newspapers, radio broadcasting or television station, access to opportunities for public service, and prohibit
other mass media, or any person making use of the mass media to
political dynasties as may be defined by law.” I see neither
sell or give free of charge print space or air time for campaign or
Article IX(C)(4) nor Section 26, Article II, of the Constitution
____________________________ to be all that adversarial or irreconcilably inconsistent with
the right of free expression. In any event, the latter, being one 1“Self-Reliance,” Emerson’s Essays, Emerson, Ralph Waldo, Books, Inc.,
N.Y.
of general application, must yield to the specific demands of
489
488
488 SUPREME COURT REPORTS ANNOTATED VOL. 288, MARCH 31, 1998 489
Osmeña vs. Commission on Elections Osmeña vs. Commission on Elections
Constitution. Our six-year experience with the ban on
the Constitution. The freedom of expression concededly holds,
2

political advertisements, however, constrains me to dissent.


it is true, a vantage point in the hierarchy of
While it is desirable, even imperative, that this Court, in
constitutionallyenshrined rights but, like all fundamental
accordance with the principle of stare decisis, afford stability
rights, it is not without limitations.
to the law by hewing to doctrines previously established, said
The case is not about a fight between the “rich” and the
principle was never meant as an obstacle to the abandonment
“poor” or between the “powerful” and the “weak” in our society
of established rulings where abandonment is demanded by
but it is to me a genuine attempt on the part of Congress and
public interest and by circumstances. Reverence for precedent
the Commission on Elections to ensure that all candidates are
3

simply as precedent cannot prevail when constitutionalism


given an equal chance to media coverage and thereby be
and public interest demand otherwise. Thus, a doctrine which
equally perceived as giving real life to the candidates’ right of
should be abandoned or modified should be abandoned or
free expression rather than being viewed as an undue
modified accordingly. More pregnant than anything else is
restriction of that freedom. The wisdom in the enactment of
that the court should be right.
the law, i.e., that which the legislature deems to be best in
4

I submit that our country’s past experience in the 1992 and


giving life to the Constitutional mandate, is not for the Court
1995 elections, as well as contemporary events, has
to question; it is a matter that lies beyond the normal
established that Section 11(b) of R.A. 6646 falls short of the
prerogatives of the Court to pass upon.
rigorous and exacting standard for permissible limitation on
I vote to dismiss the petition.
free speech and free press.
DISSENTING OPINION
In 1992, this Court, in NPC v. COMELEC, gave
ROMERO, J.: constitutional imprimatur to Section 11(b), pronouncing the
same to be authorized by Article IX(C), Section 4 of the
“A foolish consistency is the hobgoblin of little minds. . . .” 1 Constitution which reads:
Not wishing to be held hostage by Emerson’s “hobgoblin,” I “Section 4. The Commission may, during the election period,
dare to break away from a past position and encapsulize my supervise or regulate the enjoyment or utilization of all franchises
ruminations in a dissenting opinion. or
When, If At All, May The Court Reverse Itself? ____________________________
The majority, reiterating the 1992 decision NPC v.
COMELEC,holds that Section 11(b) of R.A. 6646 is a 2 Article III, Sec. 4:
“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
reasonable restriction on the freedom of expression right of the people peaceably to assemble and petition the Government for redress of
guaranteed by the grievances.”
Olaguer v. Military Commission No. 34, 150 SCRA 144 (1987).
3

____________________________ Olaguer v. Military Commission No. 34, 150 SCRA 145 citing Phil. Trust Co.
4

and Smith Bell and Co. v. Mitchell, 50 Phil. 30 (1933) cited with approval
in Koppel (Phils.), Inc. v. Yatco, 77 Phil. 496 (1946). See Also Tan Chong v. ____________________________
Secretary of Labor, 79 Phil. 249 (1947).
490 5BERNAS, The Constitution of the Republic of the Philippines: A
490 SUPREME COURT REPORTS ANNOTATED Commentary, Vol. I, 1987, ed., p. 34.
6 CRUZ, Constitutional Law, 1993 ed., p. 43.
Osmeña vs. Commission on Elections
491
permits for the operation of transportation and other public
VOL. 288, MARCH 31, 1998 491
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any Osmeña vs. Commission on Elections
subdivision, agency, or instrumentality thereof, including any itself, even on constitutional issues; for the legal problems
government-owned or controlled corporation or its subsidiary. Such with which society is beset continually cannot be merely
supervision or regulation shall aim to ensure equal opportunity, considered in the abstract, but must be viewed in light of the
time, and space, and the right to reply, including reasonable, equal infinite motley facets of human experience. As aptly stated by
rates therefor, for public information campaigns and forums among Mr. Justice Holmes, “The life of the law has not been logic: it
candidates in connection with the objective of holding free, orderly, has been experience.”
honest, peaceful and credible elections.” By way of illustration, we first held, in the celebrated Flag
Prefatorily, it must be borne in mind that Article IX(C), Salute Case, that:
7

Section 4 of the Constitution, is essentially an express “the flag is not an image but a symbol of the Republic of the
manifestation of the comprehensive police power of the State. Philippines, an emblem of national sovereignty, of national unity
Police power, it has been declared often enough, rests upon and cohesion and of freedom and liberty which it and the
public necessity and upon the right of the state and the public Constitution guarantee and protect. Under a system of complete
to self-protection. For this reason, its scope expands and separation of church and state in the government, the flag is utterly
contracts with changing needs. In the words of Mr. Justice
5 devoid of any religious significance. Saluting the flag does not
Isagani A. Cruz: involve any religious ceremony. The flag salute is no more a
“Police power is dynamic, not static, and must move with the religious ceremony than the taking of an oath of office by a public
moving society it is supposed to regulate. Conditions change, official or by a public candidate for admission to the bar.”
circumstances vary; and to every such alteration the police power xxx xxx xxx
must conform. What may be sustained as a valid exercise of the The children of Jehovah’s Witnesses cannot be exempted from
power now may become constitutional heresy in the future under a participation in the flag ceremony. They have no valid right to such
different factual setting. Old notions may become outmoded even as exemption. Moreover, exemption to the requirement will disrupt
new ideas are born, expanding or constricting the limits of the police school discipline and demoralize the rest of the school population
power. For example, police measures validly enacted fifty years ago which by far constitute the great majority.
against the wearing of less than sedate swimsuits in public beaches The freedom of religious belief guaranteed by the Constitution
would be laughed out of court in these days of permissiveness . . . does not and cannot mean exemption from or non-compliance with
(T)he police power continues to change even as constraints on reasonable and non-discriminatory laws, rules and regulations
liberty diminish and private property becomes more and more promulgated by competent authority.”
affected with public interest and therefore subject to regulation” The Court further predicted that exempting Jehovah’s
(Italics ours).6 Witnesses from participating in the flag ceremony would
Thus, when the temper and circumstances of the times ultimately lead to a situation wherein:
necessitate a review, this Court should not hesitate to reverse “[T]he flag ceremony will become a thing of the past or perhaps
conducted with very few participants, and the time will come when
we would have citizens untaught and uninculcated in and not thirty-day vacation with pay both before and after
imbued with reverence for the flag and love of country, admiration confinement arising from pregnancy.
for The Court said:
____________________________ ____________________________
7 Gerona v. Secretary of Education, 106 Phil. 2 (1959). 8219 SCRA 256 (1993).
492 946 Phil. 440 (1924).
492 SUPREME COURT REPORTS ANNOTATED 493
Osmeña vs. Commission on Elections VOL. 288, MARCH 31, 1998 493
national heroes, and patriotism-a pathetic, even tragic situation, Osmeña vs. Commission on Elections
and all because a small portion of the school population imposed its “The rule in this jurisdiction is, that the contracting parties may
will, demanded and was granted an exemption.” establish any agreements, terms, and conditions they may deem
Thirty-two years later, events caught up with the changing advisable, provided they are not contrary to law, morals or public
political climate, such that an undivided Court pronounced, policy.”
in Ebralinag v. The Division Superintendent of Schools of Citing American cases that espoused the prevailing laissez
Cebu that:
8
fairedoctrine, the Court ruled that the right to contract about
“the idea that one may be compelled to salute the flag, sing the one’s affairs is a part of the liberty of the individual
national anthem, and recite the patriotic pledge, during a flag guaranteed by the due process clause. The Court also cited the
ceremony on pain of being dismissed from one’s job or of being “equality of right” principle, holding that “(i)n all such
expelled from school, is alien to the conscience of the present particulars the employer and the employee have equality of
generation of Filipinos who cut their teeth on the Bill of Rights
right, and any legislation that disturbs that equality is an
which guarantees their right to free speech and the free exercise of
religious profession and worship.
arbitrary interference with the liberty of contract, which no
xxx xxx x x x. government can legally justify in a free land . . . Police power,
The sole justification for a prior restraint or limitation on the the Court conceded, is an expanding power; but it cannot grow
exercise of religious freedom is the existence of a grave and present faster than the fundamental law of the state . . . If the people
danger of a character both grave and imminent, of a serious evil to desire to have the police power extended and applied to
public safety, public morals, public health or any other legitimate conditions and things prohibited by the organic law, they
public interest, that the State has a right (and duty) to prevent. must first amend that law. 10

Absent such a threat to public safety, the expulsion of petitioners Sixteen years later, the validity of the above
from the schools is not justified.” pronouncement was rejected by the Court in Antamok
The Court held that its earlier prediction of dire consequences Goldfields Mining Co. v. CIR, which rationalized its volteface
11

had not come to pass. It concluded that exempting Jehovah’s stance, thus: “(i)n the midst of changes that have taken place,
Witnesses from attending flag ceremonies would not produce it may likewise be doubted if the pronouncement made by this
a nation “untaught and uninculcated in and not imbued with court in the case of People v. Pomar . . . still retains its
reverence for the flag and love of country, admiration for virtuality as a living principle. The policy of laissez faire has
national heroes, and patriotism.” In much the same manner, to some extent given way to the assumption by the
in the early case of People v. Pomar, the Court struck down
9

as violative of the freedom of contract, a statute prescribing a


government of the right of intervention even in contractual underpinnings of said ponencia. To my mind, the hoary
relations affected with public interests.” maxim that “time upsets many fighting faiths” still holds true,
Similarly, events subsequent to the Court’s ruling and the Court must be ever resilient and adaptable in order
in Avelino v. Cuenco impelled the Court to reverse its original
12 to meet the protean complexities of the present and future
position. In this case, the Court initially refused to take generation.
cognizance of the raging controversy to determine who was In NPC v. COMELEC, the Court held that:
the “(N)o presumption of invalidity arises in respect of exercises of
supervisory or regulatory authority on the part of the Comelec for
____________________________ the purpose of securing equal opportunity among candidates for
political office, although such supervision or regulation may result
10 BERNAS, The Constitution of the Republic of the Philippines: A in some limitation of the right of free speech and free press. For
Commentary, Vol. II, 1988 ed., p. 40.
11 70 Phil. 340 (1940).
supervision or regulation of the operations of media enterprises is
12 83 Phil. 17 (1949). scarcely conceivable without such accompanying limitation. Thus,
494 the applicable rule is the general, time-honored one—that a statute
494 SUPREME COURT REPORTS ANNOTATED is presumed to be constitutional and that the party asserting its
Osmeña vs. Commission on Elections unconstitutionality must discharge the burden of clearly and
convincingly proving that assertion.”
rightful president of the Philippine Senate, ruling that in view 495
of the separation of powers, the question was a political one VOL. 288, MARCH 31, 1998 495
not within its jurisdiction. Despite such a ruling, almost Osmeña vs. Commission on Elections
onehalf of the members of the Senate refused to acknowledge
This upends the familiar holding that “any system of prior
Mariano Cuenco as the acting President, as a result of which
restraint of expression comes to this Court bearing a heavy
legislative work came to a standstill. In the words of Justice
presumption against its constitutional validity, with the
Perfecto, “the situation has created a veritable national crisis,
Government carrying a heavy burden of showing justification
and it is apparent that solution cannot be expected from any
for the enforcement of such a restraint.” This presumption
13

quarter other than this Supreme Court . . . . . The judiciary


was even reiterated in the recent case of Iglesia ni Cristo v.
ought to ripen into maturity if it has to be true to its role as
CA, wherein we ruled that “deeply ensconced in our
14

spokesman of the collective conscience, of the conscience of


fundamental law is its hostility against all prior restraints on
humanity.” The Court, thus, assumed jurisdiction over the
speech . . . Hence, any act that restrains speech is hobbled by
case, rationalizing that supervening events justified its
the presumption of invalidity and should be greeted with
intervention.
furrowed brows. It is the burden of the respondent . . . to
From the foregoing, it can be seen that the inexorable
overthrow this presumption. If it fails to discharge this
march of events, and the liberalizing winds of change may
burden, its act of censorship will be struck down.” NPC v.
very well signal a needed shift in our conception of the
COMELEC, insofar as it bestows a presumption of validity
permissible limits of regulation in the name of police power.
upon a statute authorizing COMELEC to infringe upon the
Verily, while the validity of NPC v. COMELEC may have
right of free speech and free press, constitutes a departure
been etched on granite at the time of its promulgation, events
from this Court’s previous rulings as to mandate its re-
subsequent thereto now call into question the very
examination.
In this connection, it bears emphasis that NPC v. this is what makes the prohibition more odious. It is imposed
COMELEC was the product of a divided court, marked as it during the campaign period when the electorate clamors for
was by the strong dissents of Mr. Justices Cruz, Gutierrez, more and accurate information as their basis for intelligent
and Paras. This fact gains significance when viewed in light voting. To restrict the same only defeats the purpose of
of the changes in the composition of the court. While a change holding electoral campaigns—to inform the qualified voter of
in court composition, per se, does not authorize abandonment the qualifications of candidates for public office, as well as the
of decisional precedents, it is apropos to keep in mind the ideology and programs of government and public service they
pronouncement by the Court in Philippine Trust Co. and advocate, to the end that when election time comes, the right
Smith, Bell and Co. v. Mitchell, which reads as follows:
15 of suffrage may be intelligently and knowingly, if not always
“Is the court with new membership compelled to follow blindly the wisely, exercised. Opening all avenues of information to the
doctrine of the Velasco case? The rule of stare decisis is entitled to estimated 36.4 million voters is crucial for their intelligent
respect. Stability in the law, particularly in the business field, is exercise of the right of suffrage in the May 11 polls,
desirable. But idolatrous reverence for precedent, simply as considering that they will be voting for an average of thirty
precedent, no longer rules. More important than anything else is
elective positions. 16

that the court should be right.” (Italics ours)


Second, the prohibition is of limited application, as the
____________________________ same is applied only to the purchase and sale of print space
and air time for campaign or other political purposes. ‘‘Section
13 BERNAS, The Constitution of the Republic of the Philippines: A 11(b) does not purport in any way to restrict the reporting by
Commentary, Vol. I, p. 142, citing New York Times vs. United States (403 U.S.
713). ____________________________
14 259 SCRA 529 (1996).

15 59 Phil. 30 (1933).
16 One president, one vice-president, twelve senators, one congressman, one

496 party-list representative, one governor, one vicegovernor, an estimated five


496 SUPREME COURT REPORTS ANNOTATED Sangguniang Panlalawigan members, one mayor, one vice-mayor, and an
Osmeña vs. Commission on Elections estimated five Sangguniang Bayan/Panglungsod members.
497
Are The Restrictions Imposed by Sec. 11(b) of R.A. 6646 on
VOL. 288, MARCH 31, 1998 497
Freedom of Expression Valid?
Preliminaries having been disposed of, we proceed to the crux Osmeña vs. Commission on Elections
of the matter. Freedom of speech has been defined as the newspapers or radio or television stations of news or
liberty to know, to utter and to argue freely according to newsworthy events relating to candidates, their
conscience, above all liberties. It thus includes, not only the qualifications, political parties and programs of government.’’
right to express one’s views, but also other cognate rights It does not reach commentaries and expressions of belief or
relevant to the free communication of ideas, not excluding the opinion by reporters or broadcasters or editors or
right to be informed on matters of public concern. commentators or columnists in respect of candidates, their
The Court, in NPC v. COMELEC, found the restrictions qualifications, and programs and so forth. To be sure,
imposed by Section 11(b) on the freedom of expression, to be newspapers, radio, and television stations may not be
valid. First, the prohibition is limited in the duration of its restricted from reporting on candidates, their qualifications,
applicability and enforceability to election periods. Precisely, and programs of government, yet, admittedly, the freedom of
expression of the candidates themselves in the manner they Finally, it is alleged that while Section 11(b) prohibited the
choose to, is restricted. Candidates are thereby foreclosed sale or donation by mass media of print space or air time for
from availing of the facilities of mass media, except through campaign or other political purposes, COMELEC, by way of
the filtering prism of the COMELEC. exception, was mandated to purchase print space or air time,
Not to be overlooked is the stark truth that the media itself which space and time it was required to allocate, equally and
is partisan. In a study commissioned by the COMELEC itself
17 impartially, among the candidates for public office. Hence,
to determine whether certain newspapers adhered to the whatever limitation was imposed by Section 11(b) upon the
principles of fairness and impartiality in their reportage of the right to free speech of the candidates was found not to be
presidential candidates in the 1992 elections, the results unduly repressive or unreasonable inasmuch as they could
disclosed that newspapers showed biases for or against still realize their objective as long as it was coursed through
certain candidates. Hence, the contention that “Section 11(b) COMELEC. COMELEC it was that shall decide what, who,
does not cut off the flow of media reporting, opinion or which media to employ and the time allocation for the
commentary about candidates, their qualifications and candidates who signify their desire to avail of the agency’s air
platforms and promises” simply is illusory. Editorial policy time and print space. Why accord to COMELEC such powers
will always ensure that favored candidates receive prominent in the name of supervision and regulation at the expense of
coverage while less favored ones will get minimal exposure, if the constitutionally hallowed freedom of expression?
at all. This underscores the need to give candidates the Given the conditions then prevailing, the Court’s ruling
freedom to advertise, if only to counteract negative reporting in NPC v. COMELEC may have been valid and reasonable;
with paid advertisements, which they cannot have recourse to yet today, with the benefit of hindsight, it is clear that the
with the present prohibition. Worse, the ban even encourages prohibition has become a woeful hindrance to the exercise by
corruption of the mass media by candidates who procure paid the candidates of their cherished right to free expression and
hacks, concomitantly, a violation of the people’s right to information
on matters of public concern. As applied, it has given an undue
____________________________
advantage to well-known popular candidates for office.
17 The study was conducted by six senior students of the UP College of Mass
In the hierarchy of fundamental civil liberties, the right of
Communications, covering Manila Bulletin, Philippine Daily Inquirer, free expression occupies a preferred position, the sovereign
18

Philippine Times Journal, People’s Journal and Tempo—Report of the people recognizing that it is indispensable in a free society
COMELEC to the President and Congress of the Republic of the Philippines
such as ours. Verily, one of the touchstones of democracy is
on the Conduct of the Synchronized National and Local Elections of May 11,
1992, Vol. I, p. 56. the principle that freepolitical discussion is necessary if gov-
498
____________________________
498 SUPREME COURT REPORTS ANNOTATED
Osmeña vs. Commission on Elections 18 Philippine Blooming Mills Employees Organization vs. Philippine
masquerading as legitimate journalists, to sing them paeans Blooming Mills, Inc., 50 SCRA 189 (1973).
to the high heavens. Wittingly or unwittingly, the mass 499
media, to the detriment of poor candidates, occasionally lend VOL. 288, MARCH 31, 1998 499
themselves to the manipulative devices of the rich and Osmeña vs. Commission on Elections
influential candidates.
ernment is to remain responsive to the will of the people. It is ____________________________
a guarantee that the people will be kept informed at all times
16A Am Jur 2d, p. 341.
19

sufficiently to discharge the awesome responsibilities of 500


sovereignty. 500 SUPREME COURT REPORTS ANNOTATED
Yet, it is also to be conceded that freedom of expression is Osmeña vs. Commission on Elections
not an absolute right. The right or privilege of free speech and candidates, the prominent and popular candidates for public
publication has its limitations, the right not being absolute at office. What is in store for the relatively obscure candidate
all times and under all circumstances. For freedom of speech who wants to pursue his candidacy? Eager to trumpet his
does not comprehend the right to speak whenever, however, credentials and program of government, he finds himself
and wherever one pleases, and the manner, and place, or time barred from using the facilities of mass media on his own.
of public discussion can be constitutionally controlled.19
While incumbent government officials, show business
Still, while freedom of expression may not be immune from personalities, athletes and prominent media men enjoy the
regulation, it does not follow that all regulation is valid. advantage of name recall due to past public exposure, the
Regulation must be reasonable as not to constitute a unknown political neophyte has to content himself with other
repression of the freedom of expression. First, it must be fora, which, given the limited campaign period, cannot reach
shown that the interest of the public generally, as the electorate as effectively as it would through the mass
distinguished from that of a particular class requires such media. To be sure, the candidate may avail himself of
regulation. Second, it must appear that the means used are ‘‘COMELEC Space’’ and ‘‘COMELEC Time,’’ but the sheer
reasonably necessary for the accomplishment of the purpose, number of candidates does not make the same an effective
and not unduly oppressive upon individuals. vehicle of communication. Not surprisingly, COMELEC
As to the first, in NPC v. COMELEC, this Court declared Chairman Pardo, at the Oral Argument held by the Court en
that the ban on political advertising aims to assure equality banc, admitted that no candidate has as yet applied for
of opportunity to proffer oneself for public service by COMELEC air time and space.
equalizing, as far as practicable, the situations of rich and More telling, the celebrities are lavished with broader
poor candidates by preventing the former from enjoying the coverage from newspapers, radio and television stations, as
undue advantage offered by huge campaign “war chests.” well as via the commentaries and expressions of belief or
While there can be no gainsaying the laudable intent opinion by reporters, broadcasters, editors, commentators or
behind such an objective, the State being mandated to columnists, as they are deemed more newsworthy by media,
guarantee equal access to opportunities for public service, the thus generating a self-perpetuating cycle wherein political
prohibition has had the opposite effect. Instead of “equalizing” unknowns, who may be more deserving of public office,
the position of candidates who offer themselves for public campaign in relative obscurity compared to their more
office, the prohibition actually gives an unfair advantage to popular rivals. Instead of equalizing opportunities for public
those who have had wide media exposure prior to the service, the prohibition not only perpetuates political
campaign period. Instead of promoting the interests of the inequality, but also invidiously discriminates against lesser-
public in general, the ban promotes the interest of a particular known candidates.
class of While Article IX(C), Section 10 of the Constitution provides
that “(b)ona fide candidates for any public office shall be free
from any form of harassment and discrimination,” Article Yet, these means of communication are denied such
IX(C), Section 4 is nothing if not antithetical to the former candidates due to the imagined apprehension that more
provision as, in its application, it is productive of a situation affluent candidates may monopolize the airwaves. This fear,
wherein political neophytes are blatantly discriminated however, need not materialize as the COMELEC is precisely
against. Much as we recognize the basic canon in empowered to regulate mass media to prevent such a
Constitutional construction that the Constitution must be monopoly. Likewise, the ceiling on election spending imposed
interpreted by law upon all candidates, regardless, will also serve as a
501 deterrent.
VOL. 288, MARCH 31, 1998 501 Second, the means employed is less than effective, for with
Osmeña vs. Commission on Elections or without the ban, moneyed candidates, although similarly
in such a way as to harmonize all its provisions if the Charter barred from buying mass media coverage, are in a position to
is to be construed as a single, comprehensive document and lavish their funds on other propaganda activities which their
not as a series of disjointed articles or provisions, the 502
predictable effect is for one provision to negate the other. 502 SUPREME COURT REPORTS ANNOTATED
As to the second requisite, experience shows that the ban Osmeña vs. Commission on Elections
on political advertisements has not been reasonably necessary lesser-endowed rivals can ill-afford. Furthermore, we take
to accomplish its desired end. First, there are more than 70 judicial notice of the inability of COMELEC to enforce laws
provinces, more than 60 cities and more than a thousand limiting political advertising to ‘‘common poster areas.’’ Many
municipalities spread all over the archipelago. Previous places in cities have been ungainly plastered with campaign
elections have shown that the ban on political advertising materials of the better off candidates. What use is there in
forces a candidate to conduct a nationwide whistle-stop banning political advertisements to equalize the situation
campaign to attain maximum exposure of his credentials and between rich and poor candidates, when the COMELEC itself,
his program of government. Obviously, this necessitates by its failure to curb the political excesses of candidates,
tremendous resources for sundry expenses indispensable for effectively encourages the prevailing disparities? Why then
political campaigns, all within a limited period of 90 days. single out political advertising? What is the reasonable
Given the enormous logistics needed for such a massive effort, necessity of doing so?
what are the chances for an impecunious candidate who To be realistic, judicial notice must be taken of the fact that
sincerely aspires for national office? COMELEC, in narrowing down its list of “serious” candidates,
On the other hand, radio and television reach out to a great considers in effect a candidate’s capability to wage an effective
majority of the populace more than other instruments of nationwide campaign—which necessarily entails possession
information and dissemination, being the most pervasive, and/or availability of substantial financial resources. Given
effective, and inexpensive. A 30-second television this requirement, the objective of equalizing rich and poor
advertisement, costing around P35,000.00 at present rates, candidates may no longer find relevance, the candidates
would, in an instant, reach millions of viewers around the ultimately allowed to run being relatively equal, as far as
country in the comfort of their homes. Indeed, the use of resources are concerned. Additionally, the disqualification of
modern mass media gives the poor candidate the opportunity nuisance candidates, allegedly due to their inability to launch
to make himself known to the electorate at an affordable cost. serious campaigns, itself casts doubt on the validity of the
prohibition as a means to achieve the state policy of equalizing this guarantee is the right of the people to speak and publish
access to opportunities for public service. If poor and unknown their views and opinions on political and other issues, without
candidates are declared unfit to run for office due to their lack prior restraint and/or fear of subsequent punishment. Yet
of logistics, the political ad ban fails to serve its purpose, as Section 11(b), by authorizing political advertisements only via
the persons for whom it has been primarily imposed have been the COMELEC effectively prevents the candidates from freely
shunted aside and thus, are unable to enjoy its benefits. using the facilities of print and electronic mass media to reach
It must be kept in mind that the holding of periodic the electorate. A more blatant form of prior restraint on the free
elections constitute the very essence of a republican form of flow of information and ideas can hardly be imagined. To be
government, these being the most direct act and participation sure, it does not constitute an absolute restriction, but it is
of a citizen in the conduct of government. In this process, restriction nonetheless, as odious and insidious as any that
political power is entrusted by him, in concert with the entire may be conceived by minds canalized in deepening grooves.
body of the electorate, to the leaders who are to govern the I hold that, given our experience in the past two elections,
nation for a specified period. To make this exercise political advertisements on radio and television would not
meaningful, it is the duty of government to see to it that endanger any substantial public interest. Indeed, allowing
elections are free and honest and that the voter is advertisements would actually promote public interest by
unhampered by overt and covert furthering public awareness of election issues. The objective,
503 equalizing opportunities for public service, while of some
VOL. 288, MARCH 31, 1998 503 immediacy during election times, does not justify curtailing
Osmeña vs. Commission on Elections the citizen’s right of free speech and expression.
inroads of fraud, force and corruption so that the choice of the 504
people may be untrammelled and the ballot box an accurate 504 SUPREME COURT REPORTS ANNOTATED
repository of public opinion. And since so many imponderables Osmeña vs. Commission on Elections
may affect the outcome of elections—qualifications of voters “Not only must the danger be patently clear and pressingly present
and candidates, education, means of transportation, health, but the evil sought to be avoided must be so substantive as to justify
public discussion, private animosities, the weather, the a clamp over one’s mouth or a writing instrument to be stilled. For
threshold of a voter’s resistance to pressure—the utmost these reasons, any attempt to restrict these liberties must be
justified by clear public interest, threatened not doubtfully or
ventilation of opinion of men and issues, through assembly,
remotely but by clear and present danger. The rational connection
association and organizations, both by the candidate and the
between the remedy provided and the evil to be curbed, which in
voter, becomes a sine qua non for elections to truly reflect the other context might support legislation against attack on due
will of the electorate. process grounds, will not suffice. These rights rest on firmer
With the prohibition on political advertisements except foundation. Accordingly, whatever occasion would restrain orderly
through the Comelec space and time, how can a full discussion discussion and persuasion, at appropriate time and place, must
of men, issues, ideologies and programs be realized? Article have clear support in public danger, actual or impending. Only the
III, Section 4 of the Constitution provides that “(n)o law shall greatest abuses, endangering permanent interests, give occasion for
be passed abridging the freedom of speech, of expression, of permissible limitation.”20

the press, or the right of the people peaceably to assemble and


petition the government for redress of grievances.” Implicit in
No such clear and present danger exists here as to justify Time” sacrifices the right of the citizenry to be sufficiently
banning political advertisements from radio and television informed regarding the qualifications and programs of the
stations. candidates. The net effect of Section 11(b) is, thus, a violation
Past experience shows that the COMELEC has been hard of the people’s right to be informed on matters of public
put effectively informing the voting populace of the concern and makes it a palpably unreasonable restriction on
credentials, accomplishments, and platforms of government of the people’s right to freedom of expression. Not only this, the
the candidates. There are 17,396 national and local elective failure of “Comelec Space” and “Comelec Time” to adequately
public positions which will be contested by an estimated
21 inform the electorate, only highlights the unreasonableness of
100,000 candidates on May 11, 1998. For national positions,
22 the means employed to achieve the objective of equalizing
the list has been trimmed down to 11 candidates for president, opportunities for public service between rich and poor
9 candidates for vice-president, and 40 candidates for senator. candidates.
It is difficult to see how the number of candidates can be Again, NPC v. COMELEC finds Section 11(b) valid, as paid
adequately accommodated by “COMELEC Space” and political advertisements are allowed in fora other than
“COMELEC Time.” Resolution No. 2983 of the COMELEC, modern mass media, thus: ‘‘aside from Section 11(b) of R.A.
issued in compliance with Section 92 of B.P. 881, mandates 6646 providing for ‘COMELEC Space’ and ‘COMELEC Time,’
that at least thirty minutes of prime time be granted to the Sections 9 and 10 of the same law afford a candidate several
Commission, venues by which he can fully exercise his freedom of
expression, including freedom of assembly.’’ A concurring
____________________________
opinion points to the mandate of COMELEC to encourage
20 Blo Umpar Adiong vs. Comelec, 207 SCRA 712 (1992). nonpolitical, non-partisan private or civic organizations to
21 Education and Information Department, COMELEC. initiate
22 In 1992, there were 17,282 contested positions, while the total number of

candidates reached 87,770 - Report of the COMELEC to the President and ____________________________
Congress of the Republic of the Philippines on the Conduct of the Synchronized
National and Local Elections of May 11, 1992, Vol. I, p. 2. 23 Sec. 2. Every radio broadcasting and television station operating under

505 franchise shall grant the Commission, free of charge, at least thirty (30)
VOL. 288, MARCH 31, 1998 505 minutes of prime time daily, to be known as “COMELEC Time,” effective
February 10, 1998 for candidates for President, Vice-President and Senators,
Osmeña vs. Commission on Elections and March 27 for candidates for local elective offices, until May 9, 1998.
free of charge, from February 10, 1998 until May 9, 24 Sec. 3. Uses of ‘‘COMELEC Time’’------x x x “COMELEC Time” shall also

1998. Thirty minutes of prime-time for eighty-nine days (89)


23 be used by the Commission in disseminating vital election information.
506
is scarcely enough time to introduce candidates to the voters,
much less to properly inform the electorate of the credentials 506 SUPREME COURT REPORTS ANNOTATED
and platforms of all candidates running for national office. Let Osmeña vs. Commission on Elections
us be reminded that those running for local elective positions and hold in every city and municipality, public fora at which
will also need to use the same space and time from March 27 all registered candidates for the same office may participate
to May 9, 1998, and that the COMELEC itself is authorized in, the designation of common poster areas, the right to hold
to use the space and time to disseminate vital election political caucuses, conferences, meetings, rallies, parades,
information. Clearly, “COMELEC Space” and “COMELEC
24 and other assemblies, as well as the publication and
distribution of campaign literature. All these devices sentatives, are prevented from directly disseminating their
conveniently gloss over the fact that for the electorate, as platforms of government through the mass media. The ban on
shown in surveys by the Ateneo de Manila University’s Center political advertisements thus serves as a deterrent to the
for Social Policy and Public Affairs, mass media remains to be development of self-reliance, self-development, logistical and
the most important and accessible source of information about organizational capability on the part of sectoral
candidates for public office. parties/organizations, even as it inhibits them from reaching
It must be borne in mind that the novel party-list system their target audiences. What more effective way of depriving
will be implemented in the impending elections. The party- them of the chance of consolidating a mass base sorely needed
list system, an innovation introduced by the 1987 for a fair chance of success in a highly competitive political
Constitution in order to encourage the growth of a multi-party exercise. Likewise, with the inability of the candidates to
system is designed to give a chance to marginalized sectors of reach the sectors they seek to represent, the right of the
society to elect their representatives to the Congress. A people belonging to these sector to be informed on matters of
scheme aimed at giving meaningful representation to the concern to them is likewise violated. 27

interests of sectors which are not adequately attended to in Finally, NPC v. COMELEC invokes the specter of the
normal legislative deliberations, it is envisioned that system “captive audience” to justify its stand against political
will encourage interest in political affairs on the part of a large advertisements. Describing political advertisements as
number of citizens who feel that they are deprived of the “appealing to the non-intellective faculties of the captive and
opportunity to elect spokesmen of their own choosing under passive audience,” it says that anyhow, the only limitation
the present system. It is expected to forestall resort to extra- imposed by Section 11(b) upon the free speech of candidates is
parliamentary means by minority groups which would wish on their right to bombard the helpless electorate with paid
to express their interests and influence governmental policies, advertisements commonly repeated in the mass media ad
since every citizen is given a substantial representation. 25 nauseam. Suffice it to say that, with the exception of
Under R.A. 7941, known as the Party-List System Act, the obscenity, seditious speech, libel, and the like, it is not for this
labor, peasant, fisherfolk, urban poor, indigenous cultural Court to determine what the people may or may not watch or
communities, elderly, handicapped, women, youth, veterans, read. Even “mind-numbing” political advertisements are
overseas worker and professional sectors will have the26 subject to the constitutional safeguard of due process.
opportunity to elect representatives to Congress. With the Freedom of Speech Expression Remains a Fresh
prohibition on political advertisements, however, those and Vital Verity
parties who wish to have their candidates elected as sectoral The guarantee of the freedom of speech which has been
repre- defined by Wendell Phillips as “the instrument and guarantee
and the bright and consummate flower of all liberty,” has
____________________________
always been granted a predominant status in the hierarchy of
BERNAS, The Intent of the 1986 Constitution Writers, 1995 ed., p. 344.
25
____________________________
Section 3, R.A. 7941.
26

507 27 As of February 9, 1998, 93 parties/organizations have filed certificates of

VOL. 288, MARCH 31, 1998 507 candidacy under the party-list system—Law Division, COMELEC.
Osmeña vs. Commission on Elections 508
508 SUPREME COURT REPORTS ANNOTATED 29 See concurring opinion of Mr. Justice Brandeis in Whitney v.
California, 274 US 357 (1926).
Osmeña vs. Commission on Elections 30 Red Lion Broadcasting Co. v. FCC, 395 US 367 (1969).

individual rights. It is founded on the belief that the final end


28 31 Emerson, Thomas. The System of Freedom of Expression, p. 7 (1969).

32 Channels 2, 4, 5, 7, 9, 11, 13, 23, 27, 29, 31, 39.


of the state was to make men free to develop their faculties
509
and that freedom to think as you will and to speak as you
think are means indispensable to the discovery and spread of VOL. 288, MARCH 31, 1998 509
political truth. Its purpose is to preserve an uninhibited
29
Osmeña vs. Commission on Elections
marketplace of ideas where truth will ultimately prevail. “An 30 cal advertisements constitute invasion of privacy overlooks
individual who seeks knowledge and truth must hear all sides the fact that viewers, with the surfeit of channels, can easily
of the question, consider all alternatives, test his judgment by skip to other TV channels during commercial breaks—a fact
exposing it to opposition and make full use of different minds. which, coupled with the now ubiquitous remote control device,
Discussion must be kept open no matter how certainly true an has become the bane of advertisers everywhere.
accepted opinion may be; many of the most widely accepted The line between gaining access to an audience and forcing
opinions have turned out to be erroneous. Conversely, the the audience to hear is sometimes difficult to draw, leaving
same principles apply no matter how false or pernicious the the courts with no clearcut doctrine on issues arising from this
new opinion may be; for the unaccepted opinion may be true kind of intrusion. This is specially true in cases involving
and partially true; and even if false, its presentation and open broadcast and electronic media. The US cases cited as
discussion compel a rethinking and retesting of the accepted authorities on the captive audience phenomenon, which,
opinion. As applied to instant case, this Court cannot dictate
31 incidentally, did not involve the issue of election
what the citizen may watch on the ground that the same campaigns, provide
33

appeals only to his non-intellective faculties or is


____________________________
minddeadening and repetitive. A veritable “Big Brother”
looking over the shoulder of the people declaring: “We know 33 In Columbia Broadcasting v. Democratic National Committee (412 US

better what is good for you,” is passé. 94) the court held that broadcasters may validly refuse to accept paid editorial
advertisements from “responsible entities” wishing to present their views on
As to the puerile allegation that the same constitutes
public issues like, in this instance, the Business Executives’ Move for Vietnam
invasion of privacy, making the Filipino audience a “captive Peace, expressing their views on the Vietnam conflict. See however CBS v.
audience,” the explosive growth of cable television and Fox (453 US 367 [1981]) where the US Supreme Court held that the
AM/FM radio will belie this assertion. Today, the viewing Communications Act of 1934 grants an affirmative, enforceable and limited
right of reasonable access to broadcast media for legally qualified individual
population has access to 12 local TV channels, as well as32
candidates seeking federal elective office. The Court quoted the observation of
cable television offering up to 50 additional channels. To the Federal Communications Commission that “An arbitrary blanket ban on
maintain that politi- the use of the candidate of a particular class or length of time in a particular
period cannot be considered reasonable. A Federal candidate’s decisions as to
____________________________ the best method of pursuing his or her media campaign should be honored as
much as possible under the “reasonable limits” imposed by the licensee.”
28 Mutuc v. Comelec, 36 SCRA 228 (1970); Victoriano v. Elizalde Rope In Public Utilities v. Pollak (343 US 451 [1952]) which was cited in
Workers Union, 59 SCRA 54 (1974); Gonzales v. Comelec, 27 SCRA Columbia, the US Supreme Court rejected the claim that the broadcasting of
835 (1969). special programs-in this case 90% music, 5% news and 5% commercial
advertising-in public transit cars violated the right of the passengers who did
not wish to listen to the programs.
In Kovacs v. Cooper (336 US 77 [1949]) the Court upheld an ordinance access to its transit system to minimize the chances of abuse, the appearance
forbidding the use on public streets of sound trucks which emit “loud and of favoritism and the risk of imposing upon a captive audience.
raucous” noises. Justice Black in his dissent however cited the case of Saia v. 35 Illinois Board of Directors v. Socialist Workers, 440 US 173 (1979).

New York (334 US 558[1948]) where an ordinance banning the use of sound 36 Eu v. San Francisco Democratic Comm., 489 US 214 (1989).

amplification devices except for dissemination of news items and matters of 511
public concern------provided VOL. 288, MARCH 31, 1998 511
510
Osmeña vs. Commission on Elections
510 SUPREME COURT REPORTS ANNOTATED
“the concept that the government may restrict the speech of some
Osmeña vs. Commission on Elections elements in our society in order to enhance the relative voice of the
little guidance as to whether freedom of speech may be others is wholly foreign to the First Amendment which was
infringed during the campaign period for national elections on designed to “secure the widest possible dissemination of
account of the individual’s right to privacy. Prudence would
34 information from diverse and antagonistic sources” and “to assure
dictate against an infringement of the freedom of speech if we unfettered interchange of ideas for the bringing about of political
are to take into consideration that an election campaign is as and social changes desired by the people.” (italics supplied) 37

much a means of disseminating ideas as attaining political The fear that the candidates will bombard the helpless
office and freedom of speech has its fullest and most urgent
35 electorate with paid advertisements, while not entirely
application to speech uttered during election unfounded, is only to be expected considering the nature of
campaigns. In Buckley v. Valeo, a case involving the
36 political campaigns. The supposition however that ‘‘the
constitutionality of certain provisions of the Federal Election political advertisements which will be ‘‘introjected into the
Campaign Act, the United States Supreme Court per electronic media and repeated with mind deadening
curiam held that: frequency’’ are commonly crafted not so much to inform and
educate as to condition and manipulate, not so much to
____________________________ provoke rational and objective appraisal of candidates’
qualifications or programs as to appeal to the intellective
the police chief’s permission was obtained, was struck down as
unconstitutional. The court in the Saia case held that, ‘‘Loudspeakers are faculties of the captive and passive audience’’ is not a valid
today indispensable instruments of effective public speech. The sound truck justification for the infringement of so paramount a right
has become an accepted method of political campaign.’’ Adhering to his dissent granted by the Constitution inasmuch as it is the privilege of
in Saia, Justice Frankfurter concurred in Kovacs saying, ‘‘So long as the
the electorate in a democratic society to make up their own
legislature does not prescribe what may be noisily expressed and what may not
be, it is not for us to supervise the limits the legislature may impose in minds as to the merit of the advertisements presented. The
safeguarding the steadily narrowing opportunities for serenity and reflection.’’ government derives its power from the people as the sovereign
34 The case of Lehman v. Shaker Heights (418 US 298 [1974]) is not and it may not impose its standards of what is true and what
particularly in point in the case at bar where a complete prohibition is imposed
on the use of newspapers, radio or television, other mass media, or any person
is false, what is informative and what is not for the individual
making use of the mass media to sell or give free of charge print space or air who, as a ‘‘particle’’ of the sovereignty is the only one entitled
time for campaign and political purposes except to the Commission. In the case to exercise this privilege.
of Lehman, a city operating a public transit system sold commercial and public Government may regulate constitutionally protected
service advertising space for cards on its vehicles, but permitted no “political”
or “public issue” advertising. When petitioner, a candidate for the Office of
speech in order to promote a compelling interest if it chooses
State Representative to the Ohio General Assembly failed in his effort to have the least restrictive means to further the said interest without
advertising promote his candidacy accepted, he sought declaratory relief in the unnecessarily interfering with the guarantee of freedom of
State Courts. The US Supreme Court held that the city consciously has limited
expression. Mere legislative preference for one rather than 39Section 100 of BP 881, otherwise known as the Omnibus Election Code,
states: “No candidate shall spend for his election campaign an aggregate
another means for combating substantive evils may well be amount exceeding one peso and fifty centavos for every voter currently
an inadequate foundation on which to rest regulations which registered in the constituency where he filed his candidacy: Provided, that the
are expenses herein referred to shall include those incurred or caused to be
incurred by the candidate, whether in cash or in kind, including the use, rental
____________________________ or hire of land, water or aircraft, equipment facilities, apparatus and
paraphernalia used in the campaign: Provided, further, That where the land,
37 Buckley v. Valeo, 424 US 1 (1976) citing New York Times v. Sullivan, 84 water or aircraft, equipment, facilities, apparatus and paraphernalia is owned
S Ct. 710, quoting Associated Press v. United States, 326 US 1 (1945) by the candidate, his contributor or his supporter, the Commission is hereby
and Roth vs. United States at 484. empowered to assess the amount commensurate with the expenses for the use
512 thereof based on the prevailing rates in the locality and shall be included in
512 SUPREME COURT REPORTS ANNOTATED the total expenses incurred by the candidate.”
See also related Sections 94-112.
Osmeña vs. Commission on Elections 513
aimed at or in their operation diminish the effective exercise VOL. 288, MARCH 31, 1998 513
of rights so necessary to maintenance of democratic Osmeña vs. Commission on Elections
institutions. 38
upon points of right, reason and expediency with the
It should be noted that legislature has already seen fit to lawmaking power. 40

impose a ceiling on the candidates’ total campaign Freedom of Expression Incompatible With Social Justice?
expenditures and has limited the political campaign period
39
The constitutional question at hand is not just a simple
to 90 days for candidates running for national office and 60 matter of deciding whether the “adban” is effective or
days for congressmen and other local officials. With these ineffective in bridging the financial disparity between the rich
restrictions, it cannot be gainsaid that the constitutional and poor candidates. Section 11(b) of R.A. No. 6646 strikes at
provision on social justice has been sufficiently complied with. the very core of freedom of expression. It is unconstitutional
We see no reason why another restriction, must be imposed not because we are uncertain as to whether it actually levels
which only burdens the candidate and voters alike. To make the playing field for the candidates but because the means
matters worse, we are not even certain as to the efficacy of the used to regulate freedom of expression is on all points
“adban” in curtailing the feared consequences of the object of constitutionally impermissible. It tells the candidates when,
its restriction. Of course, this is not to say that the law is being where and how to disseminate their ideas under pain of
struck down as unconstitutional mainly because it is punishment should they refuse to comply. The implications of
efficacious or inefficacious. If this is the only issue which the ban are indeed more complex and far reaching than
confronts us, there would have been no need to give due course approximating equality among the rich and poor candidates.
to the petition inasmuch as we would be inquiring as to the The primacy accorded the freedom of expression is a
wisdom of the law and treading into an area which rightfully fundamental postulate of our constitutional system. The trend
belongs to the legislature. Verily, courts cannot run a race of as reflected in Philippine and American decisions is to
opinions recognize the broadest scope and assure the widest latitude to
____________________________
this guaranty. It represents a profound commitment to the
principle that debate of public issue should be uninhibited,
38 Thornhill v. State of Alabama, 310 US 88 (1940). robust and wide open and may best serve its high purpose
when it induces a condition of unrest, creates dissatisfaction This is what is meant by the phrase ‘‘equal time, space, equal
with conditions as they are or even stirs people to anger. 41 opportunity and the right of reply’’ under Article IX(C)(4) of
The repression of expression in an attempt to level the the 1987 Constitution which was inserted by the framers of
playing field between the rich and the poor candidates is not the Constitution as a reaction to a 1981 ruling of the Supreme
only unrealistic but goes beyond the permissible limits of Court that when the president speaks over radio or television,
freedom of expression as enshrined in the constitution. Social he speaks not as representative of his party but of the people
justice is a laudable objective but it should not be used as a and therefore opposition parties have no right to demand
means to justify infringement of the freedom of expression if equal time. 43

It is ironic that the guarantee of freedom of expression


____________________________
should be pitted against the constitutional provision on social
Cooley, Thomas. I Constitutional Limitations, 8th Ed (1927, p. 346).
40
justice because the freedom of speech is the most potent in-
Gonzales v. Comelec, supra.
41

514 ____________________________
514 SUPREME COURT REPORTS ANNOTATED
84 Phil. 847 (1949).
42

Osmeña vs. Commission on Elections I Record 632, 662-663.


43

it can be achieved by means that do not unnecessarily trench 515


on the individual’s fundamental right. The case of Guido v. VOL. 288, MARCH 31, 1998 515
Rural Progress Administration, is particularly enlightening.
42 Osmeña vs. Commission on Elections
In said case, we had occasion to state that: strument of public opinion, not to speak of its being the most
“Hand in hand with the announced principle, herein invoked, that effective weapon for effecting political and social reforms.
‘the promotion of social justice to insure the well being and economic Certainly, an infringement of the freedom of speech in a less
security of all people should be the concern of the state,’ is a than heroic attempt at attaining social justice cannot be
declaration with which the former should be reconciled, that ‘the countenanced, for in the ultimate analysis social justice
Philippines is a Republican state’ created to secure to the Filipino
cannot flourish if the people’s right to speak, to hear, to know
people ‘the blessings in independence under a regime of justice,
and ask for redress of grievances is watered down.
liberty and democracy.’ Democracy as a way of life enshrined in the
Constitution, embraces as its necessary components freedom of A word on the intervenors’ argument that Resolution No.
conscience, freedom of expression, and freedom in pursuit of 2983, Section 2, insofar as it directs every radio broadcasting
happiness. x x x Social justice does not champion division of and television station to provide COMELEC with air time free
property or equality of economic status; what it and the of charge constitutes taking of private property for public use
Constitution do guarantee are equality of economic opportunity, without just compensation. The COMELEC, anticipating its
equality of political rights, equality before the law, equality vulnerability to said challenge passed Resolution 2983-A on
between values given and received x x x.” March 3, 1998 requiring that it pay just compensation for its
While we concede the possibility that the rich candidates may COMELEC time.
dominate the airwaves to the detriment of the poor Buckley vs. Valeo and Existing US Jurisprudence
candidates, the latter should not be prevented from replying. The novelist George Orwell once said, ‘‘In a society in which
While they may be restricted on account of their financial there is no law, and in theory no compulsion, the only arbiter
resources, they are not denied access to the media altogether. of behavior is public opinion. But public opinion, because of
the tremendous urge to conformity in gregarious animals, is sanctity of the status accorded to the said freedom, the US
less tolerant than any other system of law.’’ For want of Supreme Court has, in fact, gone as far as invalidating a
legislature to equalize the playing field between the rich and federal law limiting individual expenditures of candidates
the poor candidates, it has, by imposing a complete running for political office.
prohibition on paid political advertisements, burned down a In any case, to address some misconceptions about existing
house to roast a pig. For fear of accusations that it might be jurisprudence on the matter, we now present a brief
treading into an area which rightfully belongs to the discussion on Buckley and the preceding US cases. In the case
legislature, the Court today, by sanctioning an unnecessary of Buckley v. Valeo,a divided US Supreme Court, per
infringement on the freedom of speech, has unwittingly curiam held that a federal law limiting
allowed the camel’s nose into the tent. individual contributions to candidates for office served the
My colleague, Justice Reynato Puno, in his separate state’s compelling interest in limiting the actuality and
opinion, apparently overlooked the thrust of our dissenting appearance of corruption. However a law
opinion when we quoted the case of Buckley v. Valeo. Lest we
44 limiting expenditures by candidates, individuals and groups
be misunderstood, we have in no way relied on the Buckley v. was held unconstitutional. The rationale for the dichotomy
Valeo case for the grant of the instant petition inasmuch as it between campaign expenditures and contributions has been
explained in this wise—campaign contributions are marginal
____________________________
because they convey only an undifferentiated expression of
424 US 1 [1976].
44
support rather than the specific values which motivate the
516 support. Expenditures, on the other hand, as directly related
516 SUPREME COURT REPORTS ANNOTATED to the expression of political views, are on a higher plane of
Osmeña vs. Commission on Elections constitutional values. The Court, in noting that a more
has never escaped our notice that legislature has already seen stringent justification is necessary for legislative
fit to impose a ceiling on the candidates’ total campaign
____________________________
expenditures. Precisely, we have repeatedly emphasized in
45

the dissenting opinion that we see no reason why another See footnote 39.
45

restriction must be imposed on the constitutional guarantee 517


of freedom of speech which only burdens the candidates and VOL. 288, MARCH 31, 1998 517
electorates alike when legislature has already taken steps to Osmeña vs. Commission on Elections
comply with the constitutional provision on social justice by intrusion into protected speech said, “A restriction on the
imposing a ceiling on the candidates’ total campaign amount of money a person or a group can spend on political
expenditures and limiting the campaign period to 90 days for communication necessarily reduces the quantity of expression
candidates running for national office and 60 days for by restricting the number of issues discussed, the depth of
congressmen and other local officials. We have their exploration, and the size of the audience reached. This
mentioned Buckley if only to underscore the fact that due to is because virtually every means of communicating in today’s
the primacy accorded to freedom of speech, courts, as a rule mass society requires the expenditure of money.” 46

are wary to impose greater restrictions as to any attempt to A more discerning scrutiny of the US cases
curtail speeches with political content. To preserve the following Buckley,would show that while Buckley has been
widely criticized, it has, to date, never been modified, much campaign, were seen as presenting a lesser danger of
less discredited. In California Medical Association vs. FEC, a
47 political quid pro quos.The Court then proceeded to reject
law limiting the amount an incorporated association efforts to support the statutory limitation on expenditures on
can contribute to a multicandidate political committee was the basis of special treatment historically accorded to
upheld. The spending was viewed not as independent political corporations inasmuch as the terms of the Campaign Fund
speech but rather as “speech by proxy,” hence, the spending Act “apply equally to an informal neighborhood group that
was deemed analogous to group contributions which can be solicits contributions and spends money on a presidential
regulated. election campaign as to the wealthy and professionally
In FEC vs. National Conservative Political Action managed PAC’s.”
Comm., the US Supreme Court invalidated a section of the
48 In the case of FEC v. Massachussets Citizens for Life
Presidential Election Campaign Fund Act which makes it a (MCFL), a provision of the Federal Election Campaign Act
49

criminal offense for an independent political committee to prohibiting direct expenditure of corporate funds to a
spend more than $1,000 to further the election of nonprofit, voluntary political association concerned with
a presidential candidate who elects public funding. National elections to public office was struck down as unconstitutional.
Conservative Political Action Committee (NCPAC) and the No compelling government interest was found to justify
Fund for a Conservative Majority (FCM), two political action infringement of protected political speech in this case where a
committees or PAC’s, solicited funds in support of President small voluntary political association, which had no
Reagan’s 1980 presidential campaign. The PAC’s spent these shareholders and was not engaged in business, refused to
funds on radio and television advertising in support of accept contributions from either business corporations or
Reagan. The Court, relying on Buckley v. Valeo and the labor unions.
distinction it drew between expenditures and contributions, In Austin v. Michigan Chamber of Commerce, the case50

held that the independent expenditures of the political cited by Justice Puno, a Michigan statute prohibiting
committees were constitutionally protected for they “produce corporations from making campaign contributions from their
speech at the core of the First Amendment” necessitating a general treasury funds to political candidates was held not to
“rigorous standard of review.” Justice Rehnquist, for the violate the first amendment even though the statute
court, likened the restriction to allowing a speaker in a public burdened expressive activity mainly because the statute was
hall to express his views while sufficiently narrowed to support its goal in preventing political
corruption or the appearance of undue influence—it did not
____________________________
prohibit all corporate spending and corporations were
46 Supra at 19. permitted to make independent expenditures for political
47 453 US 182 [1981]. purposes from segregated funds but not from their
48 470 US 480 [1985].
treasuries. Notably, the non profit corporation involved in this
518 case, the Michigan Chamber of Commerce (hereinafter referred
518 SUPREME COURT REPORTS ANNOTATED to as the Chamber of Commerce), lacked three of the distinctive
Osmeña vs. Commission on Elections features of MCFL, the organization involved in the FEC vs.
denying him use of the amplifier. As in Buckley, independent National Conserva-
expenditures, not coordinated with candidates’ political
____________________________ candidates and another to dictate to them as to how they
should spend it.
475 US 1063 [1986].
49

494 US 652 [1990].


50
Freedom of expression occupies a preferred position in the
519 hierarchy of human values. The priority gives the liberty a
VOL. 288, MARCH 31, 1998 519 sancity and a sanction not permitting dubious intrusions and
Osmeña vs. Commission on Elections it is the character of the right, not the limitation which de-
tive Political Action Comm. case, namely: (1) The Chamber of
51

____________________________
Commerce, unlike MCFL, was not formed just for the purpose
of political expression; (2) The members of the Chamber of Supra.
51

Commerce had an economic reason for remaining with it even 520


though they might disagree with its politics; and (3) The 520 SUPREME COURT REPORTS ANNOTATED
Chamber of Commerce, unlike MCFL, was subject to influence Osmeña vs. Commission on Elections
from business corporations which might use it as a conduit for termines what standard governs the choice. Consequently,
52

direct spending which would pose a threat to the political when the government defends a regulation on speech as a
marketplace. means to redress past harm or prevent anticipated harm, it
From the foregoing, it should be obvious that Austin in fact must do more than simply “posit the existence of the disease
supports the holding in Buckley v. Valeo and “refines” it sought to be cured. It must demonstrate that the recited
53

insofar as it allows the regulation of corporate spending in the harms are real, not merely conjectural and that the regulation
political process if the regulation is drawn with sufficient will alleviate these harms in a material way. 54

specificity to serve the compelling state interest in reducing the As earlier pointed out, legislature has already seen fit to
threat that “huge corporate treasuries” will distort the impose a ceiling on the total campaign expenditures of the
political process and influence unfairly the outcome of candidates and has limited the campaign period for 90/60
elections. days. We see no reason why another restriction must be
The ad ban, undoubtedly, could hardly be considered as a imposed which only burdens the candidates and voters alike.
regulation drawn with sufficient specificity to serve compelling The fact alone that so much time has been devoted to the
governmental interest inasmuch as it imposes a complete discussion as to whether the adban does in fact level the
prohibition on the use of paid political advertisements except playing field among the rich and poor candidates should be a
through Comelec time and space despite the fact that strong indication in itself that it is a dubious intrusion on the
Congress has already seen fit to impose a ceiling on the freedom of expression which should not be countenanced.
candidates’ total campaign expenditures. While it seems a Illegitimate and unconstitutional practices make their
rather fair proposition that Congress may regulate the misuse initial foothold by furtive approaches and minimal deviations
of money by limiting the candidates’ total campaign from legal modes of procedure. Hence, courts must be
expenditures, it seems a rather curious supposition that extremely vigilant in safeguarding the fundamental rights
Congress through the adban can regulate the misuse of money granted by the Constitution to the individual. Since freedom
by telling the candidates how, when and where to use their of expression occupies a dominant position in the hierarchy of
financial resources for political campaigns. Obviously, it is one rights under the Constitution, it deserves no less than an
thing to limit the total campaign expenditures of the exacting standard of limitation. Limitations on the guarantee
must be clearcut, precise and, if needed readily controllable, in the process its foremost exponent, albeit producing a
otherwise the forces that press towards curtailment will national hero, Jose Rizal. The mighty pen emerged victorious
eventually break through the crevices and freedom of over the colonizers’ sword.
expression will become the exception and suppression the The Malolos Constitution, approved before the turn of
rule. Sadly, the much vaunted adban failed to live up to such
55 century on January 20, 1899, enshrined freedom of expression
standard and roseate expectations. in Article 20 of its Bill of Rights, thus:
“Article 20. Neither shall any Filipino be deprived:
____________________________ 1. Of the right to freely express his ideas or opinions, orally or in
writing, through the use of the press or other similar means.” 58

52 Thomas v. Collins, 323 U.S. 516 (1945), as cited in the dissenting opinion
of Justice Fernando in Gonzales v. Comelec at p. 885 and in the case of Blo
This right, held sacrosanct by the Filipino people and won at
Umpar Adiong v. Comelec, 207 SCRA 712 [1992]. the cost of their lives found its way ultimately in the Constitu-
53 Quincy Cable TV, Inc. v. FCC, 786 F2d 1434 [1985].

54 Edenfield v. Fane, 507 US [1993]. ____________________________


55 Emerson, Thomas. The System of Freedom of Expression, [1967] pp. 10-

11. 56 The Philippines a Century Hence, p. 62 et seq.


521 57 United States vs. Bustos, 37 Phil. 731 (1918). See Mabini, La Revolucion
VOL. 288, MARCH 31, 1998 521 Filipina.
58 GUEVARA, The Laws of the First Philippine Republic (The Laws of

Osmeña vs. Commission on Elections Malolos) 1898-1899, 1972, p. 107.


Freedom of Expression In Historical Context 522
At this juncture, as we celebrate the Centennial of our 522 SUPREME COURT REPORTS ANNOTATED
Philippine Independence, it is timely to call to mind that wars Osmeña vs. Commission on Elections
and revolutions have been fought, not only in our shores and tions of a later day, reenforced as they were, by the profound
in our time, but in centuries past, halfway around the globe to thoughts transplanted on fertile soil by libertarian ideologies.
keep these subject rights inviolate. To stretch our memories, Why emasculate the freedom of expression now to accord a
Spain’s adamant denial of basic freedoms to our hapless governmental agency a power exercisable for a limited period
forefathers, among others, sparked the Philippine revolution. of time for the dubious purpose of “equalizing” the chances of
Jose Rizal, in “Filipinas Despues de Cien Años” described the56
wealthy and less affluent candidates?
reform a sine quibus non, saying, “The minister, . . . who In summary, I hold that Section 11(b) of R.A. 6646, in the
wants his reforms to be reforms, must begin by declaring the six years that have elapsed since it was upheld as being in
press in the Philippines free.” The Filipino propagandists who consonance with the fundamental law, has now become out of
sought refuge in the freer intellectual climate of Spain sync with the times and, therefore, unreasonable and
invariably demanded “liberty of the press, of cults, and of arbitrary, as it not only unduly restrains the freedom of
associations through the columns of “La Solidaridad.”
57
expression of candidates but corollarily denies the electorate
One of the more lofty minds unleashed his fierce its fullest right to freedom of information at a time when it
nationalistic aspirations through the novels Noli Me should flourish most.
Tangere and El Filibusterismo, necessarily banned from the For the reasons stated above, I VOTE to declare Section
author’s native land. Eventually, the seeds of these 11(b) of R.A. 6646 UNCONSTITUTIONAL.
monumental works ignited the flame of revolution, devouring
DISSENTING OPINION space and air time covers only those for “campaign and
other political purposes” and does not restrict the
PANGANIBAN, J.: legitimate reporting of news and opinions by media
practitioners who are not candidates); and (b) the
The Court, by a majority vote, decided to uphold the ban on Comelec is authorized to procure, by purchase or
political advertising, as provided under Section 11(b) of RA 1
donation, media time and space which are to be fairly,
6646, and to reiterate the 1992 ruling in National Press Club freely and equally distributed among the
vs. Comelec for two main reasons:
2
candidates. Otherwise stated, the grant of Comelec
time and space, free of charge, to said candidates
1. 1.To equalize “as far as practicable, the situations of makes up for the admitted infringement of the
rich and poor candidates by preventing the former constitutional right to free speech and access to mass
from media during the campaign period.
____________________________
With all due respect, I disagree with the majority’s view and
1 “Sec. 11. Prohibited Forms of Election Propaganda.—In addition to the join the stirring Dissenting Opinions of Justices Hugo E.
forms of election propaganda prohibited under Section 85 of Batas Pambansa Gutierrez, Jr., 3

Blg. 881, it shall be unlawful:


xxx xxx xxx ____________________________
b) for any newspaper, radio broadcasting or television station, other mass media,
or any person making use of the mass media to sell or give free of charge print space or
air time for campaign or other political purposes except to the Commission as provided
3 Ibid., pp. 28-30. The following are excerpts:
under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media, columnist, “Section 11(b) of R.A. No. 6646 will certainly achieve one result—keep the
commentator, announcer who is a candidate for any elective public office shall take a voters ignorant of who the candidates are and what they stand for.”
leave of absence from his work as such during the campaign period.” “The implementation of Section 11(b) will result in gross inequality. A
2207 SCRA 1, March 5, 1992, per Feliciano, J. cabinet member, an incumbent official, a movie star, a basketball player, or a
523 conspicuous clown enjoys an unfair advantage over a candidate many times
VOL. 288, MARCH 31, 1998 523 better qualified but lesser known.”
“x x x We owe it to the masses to open all forms of communication to them
Osmeña vs. Commission on Elections during this limited campaign period. A candidate to whom columnists and
radiotelevision commentators owe past favors or who share their personal
1. enjoying the undue advantage offered by huge biases and convictions will get an undue amount of publicity. Those who incur
the ire of opinion makers cannot counteract negative reporting by buying his
campaign ‘war chests.’ ” In other words, the intention
own newspapers space or airtime for the airing of his refutations.”
of the prohibition is to equalize the “politic al playing “Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is
field” for rich and poor candidates. particularly reprehensible because it is imposed during the limited period of
2. 2.While conceding that Section 11(b) of R.A. 6646 the election campaign when information is most needed. x x x”
524
“limit[s] the right of free speech and of access to mass
media of the candidates themselves,” the Court 524 SUPREME COURT REPORTS ANNOTATED
justifies the ad ban by alleging that: (a) it is limited, Osmeña vs. Commission on Elections
first, in its “duration,” (i.e. the ban applies only during Isagani A. Cruz and Edgardo L. Paras in NPC vs.
4 5

the “election period”) and, second, in its “scope” (i.e. Comelec, and of Justice Flerida Ruth P. Romero in the present
the prohibition on the sale and the donation of print case. I
____________________________ and clean elections cannot prevail over the self-evident fact that what we have
here is an illegal intent to suppress free speech by denying access to the mass
4 Ibid., pp. 31-43. I quote significant, enlightening portions as follows: media as the most convenient instruments for the molding of public opinion.
‘‘The citizen can articulate his views, for whatever they may be worth, And it does not matter that the use of these facilities may involve financial
through the many methods by which ideas are communicated from mind to transactions, for the element of the commercial does not remove them from
mind. Thus, he may speak or write or sing or dance, for all these are forms of the protection of the Constitution.’’
expression protected by the Constitution. So is silence, which ‘persuades when ‘‘I submit that all the channels of communication should be kept open to
speaking fails.’ x x x The individual can convey his message in a poem or a insure the widest dissemination of information learning on the forthcoming
novel or a tract or in a public speech or through a moving picture or a stage elections. An uninformed electorate is not likely to be circumspect in the choice
play. In such diverse ways may he be heard. There is of course no guaranty of the officials who will represent them in the councils of government. That
that he will be heeded, for acceptability will depend on the quality of his they may exercise their suffrages wisely, it is important that they be apprised
thoughts and of his person, as well as the mood and motivation of his audience. of the election issues, including the credentials, if any, of the various aspirants
But whatever form he employs, he is entitled to the protection of the for public office. This is especially necessary now in view of the dismaying
Constitution against any attempt to muzzle his thoughts.’’ number of mediocrities who, by an incredible aberration of ego, are relying on
“It is for the purpose of properly informing the electorate of the credentials their money, or their tinsel popularity, or their private armies, to give them
and platforms of the candidates that they are allowed to campaign during the the plume of victory.
election period. x x x For violating the ‘liberty to know, to utter and to argue freely according to
It is curious, however, that such allowable campaign activities do not conscience, above all liberties,’ the challenged law must be struck down. For
include the use of the mass media because of the prohibition in Section 11(b) blandly sustaining it instead, the majority has inflicted a deep cut on the
of Rep. Act. No. 6646. x x x’’ Constitution that will ruthlessly bleed it white, and with it this most cherished
‘‘The lawful objective of Section 11(b) may be readily conceded. The of our freedoms.”
5 Ibid., pp. 43-44, where he said in part:
announced purpose of the law is to prevent disparity between the rich and the
poor candidates by denying both of them access to the mass media and thus “The freedom to advertise one’s political candidacy in the various forms of
preventing the former from enjoying and undue advantage over the latter. media is clearly a significant part of our freedom of expression and of our right
There is no question that this is a laudable goal. Equality among the of access to information. Freedom of expression in turn includes among other
candidates in this regard should be assiduously pursued by the government if things, freedom of speech and freedom of the press. Restrict these freedoms
the aspirant with limited resources is to have any chance at all against an without rhyme or reason, and you violate the most valuable feature of the
opulent opponent who will not hesitate to use his wealth to make up for his democratic way of life.
lack of competence. The majority says that the purpose of the political advertisement provision
To pursue a lawful objective, only a lawful method may be employed even is to prevent those who have much money from completely overwhelming
if it may not be the best among the suggested options. In my own view, the those who have little. This is gross error because should the campaign for votes
method here applied falls far short of the constitutional criterion. I believe that be carried out in other fora (for example, rallies and meetings) the rich
the necessary reasonable link between the means employed and the purpose candidate can always be at a great advantage over his less fortunate opponent.
sought to be achieved has not been proved and that the method employed is And so the disparity feared will likewise appear in campaigns other than
unduly oppressive.’’ through media. x x x”
“But the most important objection to Section 11(b) is that it constitutes 525
prior restraint on the dissemination of ideas. In a word, it is censorship. It is VOL. 288, MARCH 31, 1998 525
that officious functionary of the repressive government who tells the citizen
that he may speak only if allowed to do so, and no more and no less than what
Osmeña vs. Commission on Elections
he is permitted to say on pain of punishment should he be so rash as to will no longer repeat their cogent legal arguments. Let me just
disobey.” add my own.
“I remind the Court of the doctrine announced in Bantam Books v.
1. Ad Ban Not Pro-Poor,but Anti-Poor
Sullivan that ‘any system of prior restraint of expression comes to this Court
bearing a heavy presumption against its validity.’ That presumption has not The majority argues that the ad ban is pro-poor, because it
been refuted in the cases sub judice. On the contrary, the challenged provision prevents the rich from buying media time and space which the
appears quite clearly to be invalid on its face because of its undisguised poor cannot afford or match. This argument assumes that
attempt at censorship. The feeble effort to justify it in the name of social justice
media advertising is expensive and, thus, beyond the reach of While a one-page black-and-white ad in a major daily costs
the poor. about P100,000, it is replicated, however, in about 250,000
I respectfully submit that such argument is bereft of copies circulated to an equal number of offices and
10

factual basis. True, a full-page ad in a major broadsheet may 6 household nationwideon the very same day of its publication.
be priced at about P100,000; a 30-second commercial in a Each newspaper copy has an average readership of six. Hence,
major television channel, anywhere from P15,000 to P90,000
7 the ad is exposed to about 1.5 million (250,000 x 6) people all
depending on the time and the program; while air time of an over the country. Consider, too, that people discuss what they
equal duration in a leading radio station, anywhere from P300 read while they congregate in barber shops, corner stores, and
to P4,500. But even with such price tags, media ads are not
8 other places where people gather. Sometimes, radio and TV
necessarily expensive, considering their nationwide reach, broadcasters pick up and comment on what they read in
audience penetration, effectiveness and persuasive value. newspapers. So, the reach, pass-on readership, multiplier
Realistically, expenses are involved in a candidacy for a effect and effectivity of a broadsheet ad are practically
national office like the presidency, the vice presidency, and immeasurable.
the senate. In recognition of this, the law has limited
____________________________
campaign expenditures to ten pesos (P10) for every voter in
the case of candidates for president and vice president, and 1. (a)For candidates—Ten pesos (P10.00) for President and Vice-President; and
three pesos (P3) per voter in their constituencies, for other for other candidates, Three pesos (P3.00) for every voter currently registered
candidates. 9 in the constituency where he filed his certificate of candidacy: Provided, That
a candidate without any political party may be allowed to spend Five pesos
(P5.00) for every such voter; and
____________________________ 2. (b)For political parties—Five pesos (P5.00) for every voter currently registered
in the constituency or constituencies where it has official candidates.
6 Like the Philippine Daily Inquirer, the Manila Bulletin and
the Philippine Star. Any provision of law to the contrary notwithstanding, any contribution in cash or in
7 Like ABS-CBN Channel 2 or GMA Channel 7.
kind to any candidate or political party or coalition of parties for campaign purposes,
8 Petition in Intervention, p. 28.
duly reported to the Commission, shall not be subject to the payment of any gift tax.”
9 Sec. 100, BP Blg. 881, as amended by Sec. 13, R.A. 7166, which provides: 10 This is the claimed circulation of the three major broadsheets–Philippine

“Sec. 100. Limitations upon expenses of candidates.—Authorized Expenses of Daily Inquirer, Manila Bulletin and Philippine Star.
Candidates and Political Parties.—The aggregate amount that a candidate or 527
registered political party may spend for election campaign shall be as follows:
526
VOL. 288, MARCH 31, 1998 527
526 SUPREME COURT REPORTS ANNOTATED Osmeña vs. Commission on Elections
Osmeña vs. Commission on Elections On the other hand, let us consider the alternative of printing
Anyone—whether rich or poor—who aspires for such national and distributing a poster or handbill of similar size. The
elective office must expect to spend a considerable sum, actual printing cost of such handbill on newsprint is twenty
whether of his own or from allowable donations, to make centavos (P.20) per copy. The cost of 250,000 copies (the
11

himself and his platform or program of government known to circulation of a major daily) would thus be P50,000 (250,000 x
the voting public. P.20). But that is only the printing cost. To disseminate these
Media Ads handbills nationwide on the same day of printing without the
Comparatively Cheaper distribution network of a major newspaper is almost
impossible. Besides, the cost would be horrendous. To
approximate the circulation of a major newspaper, the most alternative of printing and distributing nationwide ONLY
practical substitute would be the mails. Ordinary mail is now ONCE a less timely and less effective equivalent leaflet or
P4.00 per posting. Hence, the distribution cost through the poster.
mails would be P1 million (250,000 copies x P4.00). And this A similar detailed comparison of cost-benefit could be
does not include the manual work and cost of sorting, folding written for radio and television. While, at initial glance, the
and individually addressing these 250,000 pieces of mail rates for these electronic media may appear high, still they
matter. (This alternative assumes the availability of a mailing could be proven more beneficial and cheaper in the long term
list equivalent to the reach of a newspaper.) Even if third- because of their “value-for-money” appeal. 14

class mail is used, the distribution cost alone will still be P3.00
____________________________
per individual mailing, or P750,000 for all 250,000 copies. 12

This alternative is not only much more expensive but much Sec. 3, BP Blg. 881, as amended by Sec. 5, RA 7166.
13

less effective as well, because it has no guarantee of same-day The Court, in Eastern Broadcasting Corp. vs. Dans, Jr., 137 SCRA 628,
14

delivery, has a diminished readership multiplier effect and is 635-636, July 19, 1985, through Justice Hugo E. Gutierrez, Jr., described the
pervasive effect of broadcast media in this wise:
tremendously cumbersome in terms of sorting and “The broadcast media have also established a uniquely pervasive presence in the lives
distribution. of all Filipinos. Newspapers and current books are found only in metropolitan areas
Furthermore, a candidate need not buy one-page ads. He and in the poblaciones of municipalities accessible to fast and regular transportation.
Even here there are low income masses who find the cost of books, newspapers, and
can use quarter-page ads at one fourth the cost or about magazines beyond their humble means. Basic needs like food and shelter perforce enjoy
P25,000 only per issue. To be effective in his ad campaign, he high priorities.
On the other hand, the transistor radio is found everywhere. The television set is
may need to come out once every three days (to be spread out also becoming universal. Their message may be simultaneously received by a national
or regional audience of listeners including the indifferent or unwilling who happen to
____________________________ be within the reach of a blaring radio or television set. The materials broadcast over
the airwaves reach every person of every age, persons of varying susceptibilities to
11 This is the present cost actually paid by a major broadsheet for every persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions
page of printing, including the paper and the ink used. Commercial printing to inflammatory or offensive speech would be difficult to monitor or predict. The impact
presses actually charge 3 to 4 times this amount for posters smaller than a of the vibrant speech is forceful and immediate. x x x”
one-page newspaper ad. 529
12 The cost is P3 for the first 50 grams in bulk mailing, a method which VOL. 288, MARCH 31, 1998 529
would entail add-on costs for the materials to reach the individual voters. Osmeña vs. Commission on Elections
Hence, to factor out these add-on costs while approximating the reach of a
newspaper, the cost of mailing by piece was computed instead. Candidates Should Not Be Denied
528 Option to Use Media Ads
528 SUPREME COURT REPORTS ANNOTATED From the foregoing, it is clear that mass media truly offers an
Osmeña vs. Commission on Elections economical, practical, and effective means by which a
among the different dailies) or 30 times during the 90-day relatively unknown but well-qualified political candidate who
campaign period for national candidates. Hence, he will
13
has limited resources, particularly one running for a national
spend, for the entire duration of the campaign, about office, may make known to the general public during
P750,000 (P25,000 x 30). I repeat, to advertise a one-fourth the short campaign period his qualifications, platform of
15

page ad at least 30 times in various major dailies, a candidate government, stand on vital issues, as well as his responses to
needs to spend only P750,000-an amount less than the questions or doubts about his capabilities, his character or
any other matter raised against him. Deprived of media ads, ONLY THE RICH CAN AFFORD IT OR, FOR THAT
the rich candidate, unlike his poor opponent, resorts to MATTER, THEY MAY ABUSE OR MISUSE IT. Quite the
expensive propaganda—the holding of public meetings and contrary, in terms of reach, pass-on readership, multiplier
rallies before large but oftentimes “paid” crowds, helicopter effect and costbenefit advantage, media advertising may be
stops and motorcades spanning several towns and cities, the the cheapest and most effective campaign mechanism
production of ingenious materials, giveaways and other available. I am not suggesting that every candidate should use
products, and the incessant printing and distribution of media ads. In the final analysis, it is really up to the
various campaign paraphernalia. These forms of electoral candidates and their campaign handlers to adopt such mode
promotion ineluctably require a large political machinery and and means of campaigning as their budgets and political
gargantuan funds (organization + people/supporters + strategies may require. What I am stressing is that
17

communication gadgets + vehicles + logistics). To combat this candidates, whether rich or poor,
formidable and expensive election behemoth, the poor
____________________________
candidate’s most viable alternative may be media advertising.
In NPC vs. Comelec, it was feared that the “unlimited 16 In National Press Club, supra, at pp. 12-13, the Court gives this
purchase of print space and radio and television time x x x by argument:
the financially affluent [was] likely to make a crucial “It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral
Commission [63 Phil. 139, 177 (1936)] that the possibility of abuse is no argument
difference.” But I say such fear is unfounded. First, because against the concession of the power or authority involved, for there is no power or
campaign expenses are limited by law. Second, the possibility authority in human society that is not susceptible of being abused.”
17 In his column in the Manila Standard on March 30, 1998 entitled “A
of the abuse and misuse of media ads by the “financially
survey about political ads,” Mahar Mangahas, president of the Social Weather
affluent” is not an argument in favor of their total withdrawal, Stations, explains why “it pays to advertise” political candidacies, “judging
for—to use the very words of the majority in NPC—“there is from the results of the Social Weather Stations survey of Feb. 21-27, 1998.”
no power or authority in human society that is not susceptible Interestingly, the SWS survey showed that the 1998 political ads best recalled
by the public were those of the two leading candidates---Joseph Estrada (55%)
of being
and Alfredo Lim (54%)—followed by Jose de Venecia (37%), Lito Osmeña
(35%), Renato de Villa (19%), Raul Roco (11%), Miriam Defensor Santiago
____________________________
(9%), Imelda Marcos (3%), and Juan Ponce Enrile (2%). Interestingly also, the
topnotchers in the ad survey cannot be termed “rich” nor the bottom dwellers,
1590 days for candidates for president, vice president and senator; and 45
“poor,” thereby reinforcing my thesis that the effectiveness of political ads is
days for the other elective positions (Sec. 3, BP Blg. 881, as amended by Sec.
not dependent on financial fortunes. Rather, political ads are complementary
5, RA 7166).
to the overall political strategy of each candidate.
530
531
530 SUPREME COURT REPORTS ANNOTATED VOL. 288, MARCH 31, 1998 531
Osmeña vs. Commission on Elections Osmeña vs. Commission on Elections
abused.” Third, the absence of access to media advertising
16
should be given the option of campaigning through media,
totally deprives the poor candidate of his most formidable instead of being forced to use other forms of propaganda that
weapon in combating the “huge campaign in war chests” of could turn out to be less effective and more expensive.
rich contenders.
THE POINT IS: IT IS INCORRECT TO SAY THAT
MEDIA ADVERTISING SHOULD BE BANNED BECAUSE
2. Ad Ban Not Limited; The majority also claims that the prohibition is reasonable
Comelec Time and Space Inutile because it is limited in scope; that is, it refers only to the
I now come to the second major point. The majority purchase, sale or donation of print space and air time for
rationalizes the ad ban by saying that it has a very limited “campaign or other political purposes,” and does not restrict
duration and scope and that, in any event, the Comelec’s grant news reporting or commentaries by editors, columnists,
of free media time and space to candidates more than makes reporters, and broadcasters. But the issue here is not the
up for the violation of their constitutional right. I disagree. freedom of media professionals. The issue is the freedom of
18

Ad Ban Not expression of candidates. That the freedom of the press is re-
Limited in Duration
____________________________
The ad ban is constitutional because, according to the
majority, it is limited in duration for the reason that it is 18 This specific issue has been resolved in Sanidad v. Comelec, 181 SCRA

enforced only during the election period. In my humble view 529, January 29, 1990, per Medialdea, J., where the Court ruled:
and with all due respect, this is both erroneous and illogical. “However, neither Article IX-C of the Constitution [Comelec’s power to supervise and
regulate the operation of public utilities and the mass media during the election period]
A political advertisement is relevant only during the nor Sec. 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has
campaign period—not before and not after. As petitioners put also been granted the right to supervise and regulate the exercise by media
practitioners themselves of their right to expression during the plebiscite periods. Media
it, a ban on mountain-skiing during the winter season cannot practitioners are neither the franchise holders nor the candidates. x x x Therefore,
be said to be limited in duration, just because it is enforced Section 19 of Comelec Resolution No. 2167 [prohibiting columnists, commentators or
during winter. After all, skiing is indulged in only when the announcers to use their column, radio or TV time to campaign for or against plebiscite
issues] has no statutory basis.
mountains slopes are covered with snow. To add a further xxx xxx xxx
parallel, a ban against the planting of rice during the rainy Anent respondent Comelec’s argument that Section 19 of Comelec Resolution No.
2167 does not absolutely bar petitioner-columnist from expressing his views and/or
season is not limited simply because it covers only that from campaigning for or against the organic act because he may do so through the
season. After all, nobody plants rice during summer when the Comelec space and/or Comelec radio/television time, the same is not meritorious. While
soil is parched. In the same manner, campaign ads are not the limitation does not absolutely bar petitioner’s freedom of expression, it is still
a restriction on his choice of the forum where he may express his view. No reason was
resorted to except during the campaign period. And their advanced by respondent to justify such abridgment. We hold that this form of regulation
prohibition does not become any less odious and less is tantamount to a restriction of petitioner’s freedom of expression for no justifiable
reason.” [Italics in the original.]
comprehensive just because the proscription applies only 533
during the election season. Obviously, candidates need to VOL. 288, MARCH 31, 1998 533
advertise their qualifications and platforms only during such Osmeña vs. Commission on Elections
period. Properly understood, therefore, the prohibition is not
spected by the law and by the Comelec is not a reason to
limited in duration but is in fact and in truth total, complete
trample upon the candidates’ constitutional right to free speech
and exhaustive.
532
and the people’s right to information. In this light, the
532 SUPREME COURT REPORTS ANNOTATED majority’s contention is a clear case of non sequitur. Media
ads do not partake of the “real substantive evil” that the state
Osmeña vs. Commission on Elections
has a right to prevent and that justifies the curtailment of
19

Ad Ban Neither
the people’s cardinal right to choose their means of expression
Limited in Scope
and of access to information.
Besides, what constitutes “campaign or other political ____________________________
purposes?” Neither RA 6646 nor the majority provides an ‘The institute is dismayed by the reported abdication by a number of media owners and
explanation. If candidates buy 30 column-inches of newspaper editors of their journalistic responsibilities by selling their editorial pages and air time
space or one hour of prime radio/TV time every day, and if to political candidates,’ PPI executive director Ermin Garcia said in a statement.”
See also “Ad ban worsens corruption in media,” Philippine Daily Inquirer, March
they retain professional journalists to use such space/time to 31, 1998, which reads in part:
defend them from attacks and to promote their platforms of “A media officer of a candidate revealed that in one national daily, the going price for a page one
photo is P5,000.00 The reporter who acts as broker gets P1,000, the editor who puts it out gets
government, should such purchase be covered by the ad ban, P4,000. That is cheaper than the price of an equivalent column space for advertisement in the
or should it be allowed as an exercise of the freedom of inside pages.
A presidential candidate’s photo on the front page fetches P15,000, while for a senatorial
journalists to express their views? Even more insidiously, candidate it is P10,000.
A banner story costs P25,000. A front page above the fold costs P20,000. A small press release
should regular columnists’ daily defense of their chosen costs P5,000.”
candidates and daily promotion of their platforms of 21 In contrast, this was what the Court said in unanimity in Sanidad,

government constitute donated space for “campaign and other supra:


“Plebiscite issues are matters of public concern and importance. The people’s right to be
political purposes?” 20
informed and to be able to freely and intelligently make a decision would be better served
by access to an unabridged discussion of the issues, including the forum. The people
____________________________ affected by the issues presented in a plebiscite should not be unduly burdened by
restrictions on the forum where the right to expression may be exercised. Comelec
19 Using the “clear and present danger test” as enunciated in Gonzales vs. spaces and Comelec radio time may provide a forum for expression but they do not
guarantee full dissemination of information to the public concerned because they are
Comelec, 27 SCRA 835, 877, April 18, 1969, per Fernando, J., citing Schenk v.
limited to either specific portions in newspapers or to specific radio or television times.”
United States, 249 US 47, 52, 63 L. ed. 470, 473-474 (1919); Whitney v. (Emphasis ours.)
California,247 US 357, 373, 71 L. ed. 192, 202-203 (1927); Dennis v. United 535
States, 341 US 494, 510, 95 L. ed. 1137, 1153 (1950); and several other cases.
See also Primicias vs. Fugoso, 80 Phil. 71, 87-88, January 27, 1948, per VOL. 288, MARCH 31, 1998 535
Feria, J.; Adiong vs. Comelec, 207 SCRA 712, 715, March 31, 1992, per Osmeña vs. Commission on Elections
Gutierrez, Jr., J.; Eastern Broadcasting Corp. vs. Dans, Jr., supra. eleven candidates for president, nine for vice president, and
22 23
20 “PPI appeals to media companies not to sell space, air time to
pols,” Philippine Daily Inquirer, March 5, 1998. The following are excerpts: forty for senator. It is claimed however that, all in all, there
24

“The appeal was made as the PPI expressed ‘grave concern and alarm’ over the
overnight proliferation of ‘fly-by-night’ newspapers who take advantage of the political ____________________________
campaign season for racketeering.
534 22

534 SUPREME COURT REPORTS ANNOTATED “1. Jose C. De - LAKAS-NUCD UDMP


Osmeña vs. Commission on Elections Venecia, Jr.
Ad Ban Not Compensated for or 2. Renato S. De -Partido para sa Demokratikong Reporma/
Justified by Free “Comelec Time” Villa Lapiang Manggagawa Coalition
Finally, the majority opines that the grant of free Comelec 3. Santiago F. - Kilusan para sa Pambansang
media time and space to candidates more than makes up for Dumlao, Jr. Pagpapanibago
the abridgment of the latter’s right to buy political ads. With 21 4. Juan Ponce - Independent (LP)
due respect, I believe this is hollow and shallow. In its Enrile
Compliance dated March 13, 1998, Comelec tells us that 5. Joseph E. - Partido ng Masang Pilipino-LAMMP
under its Resolution No. 3015, it gave due course to Estrada
6. Alfredo S. - Liberal Party 15. Ricardo T. Gloria - LAKAS-NUCD UMDP
Lim 16. Teofisto T. Guingona - LAKAS-NUCD UMDP
7. Imelda R. - Kilusan Bagong Lipunan 17. Abraham S. Iribani - PDR/LM Coalition
Marcos 536
8. Manuel L. - Partido Bansang Marangal 536 SUPREME COURT REPORTS ANNOTATED
Morato Osmeña vs. Commission on Elections
9. Emilio R. - Progressive Movement for Devolution of are really about 100,000 candidates running for about 17,000
Osmeña Initiative Political Party of Central Visayas national and local positions in the coming elections, from
10. Raul S. Roco - Aksyon Demokratiko whom a voter is expected to choose at least 30 to vote for.
25

11. Miriam - People’s Reform Party” With so many candidates, how can the ordinary, sometimes
Defensor nonchalant, voter ever get to know each of the political
Santiago hopefuls from whom he will make an intelligent selection? In
23 the crucial choice for president alone, how can ordinary
“1. Edgardo J. Angara - LDP/LAMMP Coalition citizens intelligently and sufficiently assess each of the 11
2. Gloria Macapagal-Arroyo - LAKAS-NUCD UMDP candidates in order to make a sensible choice for a leader upon
3. Oscar M. Orbos - PDR-LM whom to entrust the momentous responsibility of carving the
4. Sergio Osmeña III - Liberal Party country’s path in the next millennium?
5. Reynaldo R. Pacheco - KPP The Comelec answers these questions with Resolution No.
6. Camilo L. Sabio - Partido Bansang Marangal 2983-A, promulgated on March 3, 1998, in which it asks
7. Irene M. Santiago - Aksyon Demokratiko “every radio broadcasting and television station operating
8. Ismael D. Sueño - PROMDI
____________________________
9. Francisco S. Tatad - People’s Reform Party”
24

“1. Lisandro C. Abadia - LAKAS-NUCD UMDP 18. Robert S. Jaworski - LAMMP


2. Rolando R. Andaya - LAKAS-NUCD UMDP 19. Edcel C. Lagman - LAMMP
3. Teresa Aquino-Oreta - LDP/LAMMP Coalition 20. Reynante M. Langit - PDR/LM Coalition
4. Luduviso D. Badoy - KPP 21. Loren B. Legarda-Leviste - LAKAS-NUCD UMDP
5. Ramon S. Bagatsing, Jr. - LDP/LAMMP Coalition 22. Oliver O. Lozano - INDEPENDENT
6. Robert Z. Barbers - LAKAS-NUCD UMDP 23. Fred Henry V. Marallag - KPP
7. Rodolfo G. Biazon - LDP/LAMMP Coalition 24. Blas F. Ople - PMP-LAMMP Coalition
8. Eduardo D. Bondoc - KPP 25. John Reinner Osmeña - NPC/LAMMP
9. David M. Castro - KPP 26. Roberto M. Pagdanganan - LAKAS-NUCD UMDP
10. Renato L. Cayetano - LAKAS-NUCD UMDP 27. Charito B. Plaza - LIBERAL PARTY
11. Raul A. Daza - LIBERAL PARTY 28. Hernando B. Perez - LAKAS-NUCD UMDP
12. Roberto F. De Ocampo - LAKAS-NUCD UMDP 29. Aquilino Q. Pimentel - LAMMP(PDP/LABAN)
13. Renato B. Garcia - KPP 30. Santanina C.T. Rasul - LAKAS-NUCD UMDP
14. Adolfo R. Geronimo - PDR-LM Coalition 31. Ramon B. Revilla - LAKAS-NUCD UMDP
32. Miguel Luis R. Romero - LAMMP any, it has for the purpose, when each candidate will be
27

33. Roberto S. Sebastian - PDR-LM Coalition allowed to speak and for how long, how the Comelec intends
34. Roy B. Señeres - PDR-LM Coalition to cover the 77 provinces, 68 cities and 42,000 barangays
35. Vicente C. Sotto III - LDP/LAMMP Coalition nationwide, and many other details. Moreover, while the
36. Hadja Putri Zorayda A. - PDR-LM Coalition Comelec smugly speaks of free Comelec time being effective
Tamano on “February 10, 1998” for national candidates, Resolution
37. Ruben D. Torres - LAMMP 2983-A itself was promulgated only on March 3, 1998.
38. Jose M. Villegas, Jr. - LM(Workers Up to this writing, I have yet to hear of any major candidate
Party)/PDR using this so-called free Comelec broadcast time. In fact,
39. Freddie N. Webb - LDP/LAMMP during the oral argument of this case on March 5, 1998,
40. Haydee B. Yorac - Independent” Comelec Chairman Bernardo P. Pardo frankly admitted that
25 1 each for president, vice president, congressman, governor, vice no candidate had applied for an allocation of Comelec time.
governor, mayor and vice mayor; 12 for senator; at least 5 for Sangguniang Not even petitioners. This is the best testament to the utter
Panlalawiganmembers; also at least 5 for Sangguniang
Bayan/Panlungsod members; and 1 for party list representative. ____________________________
537
VOL. 288, MARCH 31, 1998 537 26Compliance dated March 13, 1998, p. 4.
27The Comelec has not even paid the per diem and allowances of the public
Osmeña vs. Commission on Elections school teachers who served during the last barangay elections. How can it
under franchise [to] grant the Commission, upon payment of expect to pay for the Comelec TV and radio time? (Memorandum of
just compensation, at least thirty (30) minutes of prime time Petitioners-in-Intervention, p. 33.)
daily, to be known as ‘Comelec time’ effective February 10, 538
1998 for candidates for President, Vice President and 538 SUPREME COURT REPORTS ANNOTATED
Senators, and effective March 27, 1998 for candidates for local Osmeña vs. Commission on Elections
elective offices, until May 9, 1998,” to be allocated “by lottery” inutility and ineffectivity of Comelec time. Indeed, it cannot
among candidates requesting its use. But Comelec, in the be a substitute, much less a viable alternative, to freely
same Compliance, informed the Court that “it is not procuring chosen but paid for media ads. It cannot compensate for the
‘Comelec space’ (in any newspaper) by virtue of the effects of violation of the candidates’ right to free speech and media
the decision of this Honorable Court in the case of Philippines access, or for the electorate’s right to information.
Press Institute (PPI) vs. Comelec, 244 SCRA 272.” 26 If the real objective is to level the playing field for rich and
In sum, the Comelec intends to secure 30 minutes of poor candidates, there must be, as there already are, a cap on
“Comelec time” from every radio and broadcasting station to election expenses and a shortening of the campaign period.
be allocated equally to all candidates. The Comelec does not The incapability of the Comelec to effectively monitor and
state exactly how it intends to allocate—except “by lottery”— strictly implement such expense and time limitations should
these 30 minutes per station to the 17,000 candidates, not take its toll upon constitutionally enshrined liberties of
considering that these stations do not have the same reach, the people, including the candidates. To prohibit access to
audience and penetration. The poll body does not say exactly mass media, except only through Comelec time—which has
how many stations are involved, what budget allocation, if been indubitably shown to be sorely insubstantial,
insignificant and inutile—is not, and is far from being, a
solution to the problems faced by poor candidates. The simple forms of propaganda, against the poor (and the unknown) who
remedy is to lift the media ban. cannot.
Epilogue The allegation that the prohibition is reasonable because it
The ad ban is a blatant violation of the candidates’ is limited in duration and scope is itself most unreasonable,
constitutional right to free speech and the people’s right to
28 bereft as it is of logic and basis. Even more shallow is the
information. Being the last refuge of the people and the
29 argument that the Comelec-given media time and space
guardian of the Constitution, this Court should then, with compensate for such abridgment. In fact, the Comelec is not
alacrity, view the ban with suspicion, if not with outright even procuring any newspaper space. In any event, the fact
rejection. To 30 that not even the poorest candidates have applied for
available opportunities is the best testament to its
____________________________
dubiousness. That petitioners who are seasoned political
28 Article III of the Constitution provides: leaders prefer to pay for their own media ads rather than to
“Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the avail themselves of the Comelec freebies refutes the majority’s
press, or the right of the people peaceably to assemble and petition the government for thesis of compensation. Indeed, the free things in life are not
redress of grievances.”
29 Article III of the Constitution also provides: always the best. They may just be a bureaucratic waste of
31

“Sec. 7. The right of the people to information on matters of public concern shall be resources.
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions as well as to government research data used as basis for
____________________________
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.”
The time-honored doctrine against prior restraint is stated in New York
30
been invariably applied in our jurisdiction, in this wise: “ ‘Any system of
Times v. United States, 403 US 713 (1971), which has prior restraints of expression comes to this Court bearing a heavy presumption
539 against its constitutional validity.’ The Government ‘thus carriers a heavy
burden of showing justification for the enforcement of such a restraint.’ ”
VOL. 288, MARCH 31, 1998 539 (Bernas, The Constitution of the Republic of the Philippines, 1987 ed., Vol. I,
Osmeña vs. Commission on Elections p. 142.)
31 With apologies to Lew Brown and Buddy (George Gard) De Sylva, “The
repeat, the alleged limitations are in reality nonexistent; and
Best Things in Life Are Free,” Good News, 1927, as quoted by John Bartlett
the “pro-poor” justification, without logic. in Bartlett’s Familiar Quotations, 1980 ed., p. 825.
To say that the prohibition levels the playing field for the 540
rich and the poor is to indulge in a theoretical assumption 540 SUPREME COURT REPORTS ANNOTATED
totally devoid of factual basis. On the contrary, media Osmeña vs. Commission on Elections
advertising may be—depending on a contender’s propaganda Before I close, a word about stare decisis. In the present case,
strategy—the cheapest, most practical and most effective the Court is maintaining the ad ban to be consistent with its
campaign medium, especially for national candidates. By previous holding in NPC vs. Comelec. Thus, respondent urges
completely denying this medium to both the rich and the poor, reverence for the stability of judicial doctrines. I submit,
this Court has not leveled the playing field. It has effectively however, that more important than consistency and stability
abolished it! Far from equalizing campaign opportunities, the are the verity, integrity and correctness of jurisprudence. As
ban on media advertising actually favors the rich (and the Dean Roscoe Pound explains, “Law must be stable but it
popular) who can afford the more expensive and burdensome cannot stand still.” Verily, it must correct itself and move in
cadence with the march of the electronic age. Error and illogic must be accorded every access to such information without
should not be perpetuated. After all, the Supreme Court, in much effort and expense on their part.
many cases, has deviated from stare decisis and reversed
32 With all due respect, I submit that the ad ban is regressive,
previous doctrines and decisions. It should do no less in the repressive and deceptive. It has no place in our constitutional
present case. democracy.
Elections can be free, honest and credible not only because WHEREFORE, I vote to GRANT the petition and to
of the absence of the three execrable “G’s” or “guns, goons and CONDEMN Section 11(b) of RA 6646 as
gold.” Beyond this, the integrity and effectivity of electoral UNCONSTITUTIONAL and VOID.
Petition dismissed.
____________________________
Notes.—Even with due recognition of its high estate and
32 For instance, Ebralinag vs. Division Superintendent of Schools of its importance in a democratic society, the press is not
Cebu, 219 SCRA 256, March 1, 1993, reversed the Court’s 34-year-old doctrine immune from general regulation by the State. (Tolentino vs.
laid down in Gerona vs. Secretary of Education, 106 Phil. 2, August 12, 1959, Secretary of Finance,235 SCRA 630 [1994])
and upheld the right of Jehovah’s Witnesses “to refuse to salute the Philippine
The Supreme Court with its new membership is not obliged
flag on account of their religious beliefs.” Similarly, Olaguer vs. Military
Commission, 150 SCRA 144, May 22, 1987, abandoned the 12-year-old ruling to follow blindly a decision upholding a party’s case when,
in Aquino, Jr. vs. Military Commission, 63 SCRA 546, May 9, 1975, which after its re-examination, the same calls for a rectification.
recognized the jurisdiction of military tribunals to try civilians for offenses (Limketkai Sons Milling, Inc. vs. Court of Appeals, 261 SCRA
allegedly committed during martial law. The Court likewise reversed itself
464 [1996])
in EPZA vs. Dulay, 149 SCRA 305, April 29, 1987, when it vacated its earlier
ruling in National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983,
on the validity of certain presidential decrees regarding the determination of ——o0o——
just compensation. In the much earlier case of Philippine Trust Co. vs.
Mitchell, 59 Phil. 30, December 8, 1933, the Court revoked its holding 542
in Involuntary Insolvency of Mariano Velasco & Co., 55 Phil. 353, November © Copyright 2018 Central Book Supply, Inc. All rights reserved.
29, 1930, regarding the relation of the insolvency law with the then Code of
Civil Procedure and with the Civil Code. Just recently, the Court,
in Kilosbayan vs. Morato, 246 SCRA 540, July 17, 1995, also abandoned the
earlier grant of standing to petitioner-organization in Kilosbayan vs.
Guingona, 232 SCRA 110, May 5, 1994.
541
VOL. 288, MARCH 31, 1998 541
Osmeña vs. Commission on Elections
democracy depend upon the availability of information and
education touching on three good “P’s”—principles, platforms 496 SUPREME COURT REPORTS ANNOTATED
and programs of the candidates. Indeed, an intelligent vote Social Weather Stations, Inc. vs. Commission on Elections
presupposes a well-informed voter. If elections must be rid of G.R. No. 147571. May 5, 2001. *

patronage, personalities and popularity as the main criteria of SOCIAL WEATHER STATIONS, INCORPORATED and
the people’s choice, we must allow candidates every KAMAHALAN PUBLISHING CORPORATION, doing
opportunity to educate the voters. And corollarily, the people business as MANILA STANDARD,
petitioners, vs. COMMISSION ON ELECTIONS, respondent.
Constitutional Law; Freedom of Speech and Press; Section 5.4 found appropriate for testing the constitutionality of various
of Republic Act 9006 (Fair Election Act) lays a prior restraint on election laws, rules, and regulations.
freedom of speech, expression, and the press.—To be sure, §5.4 lays
a prior restraint on freedom of speech, expression, and the press by MELO, J., Concurring Opinion:
prohibiting the publication of election survey results affecting
candidates within the prescribed Constitutional Law; Freedom of Speech and Press; The
prohibition against surveys within the specified period is a prior and
_____________ unreasonable restraint upon the freedom of expression.—To
reiterate, the prohibition against surveys within the specified
*EN BANC.
period is a prior and unreasonable restraint upon the freedom of
497
expression which is not reasonably necessary to achieve the
VOL. 357, MAY 5, 2001 497
purpose of clean, honest, orderly and peaceful elections. For the
Social Weather Stations, Inc. vs. Commission on foregoing reasons, I vote to grant the petition for prohibition and to
Elections declare Section 5.4 of R.A. No. 9006 unconstitutional.
periods of fifteen (15) days immediately preceding a national
election and seven (7) days before a local election. Because of the KAPUNAN, J., Dissenting Opinion:
preferred status of the constitutional rights of speech, expression,
and the press, such a measure is vitiated by a weighty presumption Constitutional Law; Freedom of Speech and Press; The
of invalidity. Indeed, “any system of prior restraints of expression freedoms of speech and of the press are not absolute or unlimited.—
comes to this Court bearing a heavy presumption against its Although among
constitutional validity. . . . The Government ‘thus carries a heavy 498
burden of showing justification for the enforcement of such 498 SUPREME COURT REPORTS ANNOTATED
restraint.’ “ There is thus a reversal of the normal presumption of Social Weather Stations, Inc. vs. Commission on
validity that inheres in every legislation. Elections
Same; Same; There is no basis for the Commission on Elections’ our most cherished rights, the freedoms of speech and of the
(COMELEC) claim that this petition for prohibition is press are not absolute or unlimited. In certain instances, this Court
inappropriate; Prohibition has been found appropriate for testing has allowed the regulation of the exercise of these freedoms vis-a-
the constitutionality of various election laws, rules, and vis election-related laws. In Osmeña vs. Commission on
regulations.—On the other hand, the COMELEC contends that Elections and National Press Club vs. Commission on Elections, the
under Art. IX-A, §7 of the Constitution, its decisions, orders, or law prohibiting newspapers, radio broadcasting and television
resolutions may be reviewed by this Court only by certiorari. The station from selling or giving free of charge print space or air time
flaws in this argument is that it assumes that its Resolution 3636, for campaign or other political purposes was declared valid.
dated March 1, 2001 is a “decision, order, or resolution” within the In Badoy vs. Commission of Elections, the prohibition on the
meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintains publication of paid political advertisements outside the COMELEC
that Resolution 3636 was “rendered” by the Commission. However, space was likewise upheld. In Gonzales vs. Commission on
the Resolution does not purport to adjudicate the right of any party. Elections, where the prohibition on the early nomination of
It is not an exercise by the COMELEC of its adjudicatory power to candidates and the limitation on the period of election campaign or
settle the claims of parties. To the contrary, Resolution 3636 clearly partisan political activity under Republic Act No. 4880 was assailed
states that it is promulgated to implement the provisions of R.A. for being violative of the freedoms of speech, of the free press, of
No. 9006. Hence, there is no basis for the COMELEC’s claim that
this petition for prohibition is inappropriate. Prohibition has been
assembly and of association, the Court declared the law not Petitioner, Social Weather Stations, Inc. (SWS), is a private
unconstitutional. non-stock, non-profit social research institution conducting
Same; Same; Congress may not only regulate the time, manner surveys in various fields, including economics, politics,
and place of the holding of the elections but may likewise regulate demography, and social development, and thereafter
the election campaigns and other activities relative thereto.—
processing, analyzing, and publicly reporting the results
Indisputably, the State has a legitimate interest in fostering an
thereof. On the other hand, petitioner Kamahalan Publishing
informed electorate. It has a compelling interest in protecting
voters from confusion and undue influence and, generally, in Corporation publishes the Manila Standard,a newspaper of
preserving the integrity of its election process. In furtherance of general circulation, which features newsworthy items of
these State interests, Congress is empowered to enact laws relative information including election surveys.
to the conduct of elections. It may not only regulate the time, Petitioners brought this action for prohibition to enjoin the
manner and place of the holding of the elections but may likewise Commission on Elections from enforcing §5.4 of R.A. No. 9006
regulate the election campaigns and other activities relative (Fair Election Act), which provides:
thereto. Surveys affecting national candidates shall not be published fifteen
Same; Same; Section 5.4 is a mere restriction not an absolute (15) days before an election and surveys affecting local candidates
prohibition on the publication of election surveys.—Viewed in the shall not be published seven (7) days before an election.
light of the legitimate and significant objectives of Section 5.4, it The term “election surveys” is defined in §5.1 of the law as
may be seen that its limiting impact on the rights of free speech and follows:
of the press is not unduly repressive or unreasonable. Indeed, it is Election surveys refer to the measurement of opinions and
a mere restriction, not an absolute prohibition, on the publication perceptions of the voters as regards a candidate’s popularity,
of election surveys. It is limited in duration; it applies only during qualifications, platforms or a matter of public discussion in relation
the period when the voters are presumably contemplating whom to the election, including voters’ preference for candidates or
they should elect and when they are most susceptible to such publicly discussed issues during the campaign period (hereafter
unwarranted persuasion. These surveys may be published referred to as “Survey”).
thereafter. To implement §5.4, Resolution 3636, §24(h), dated March 1,
2001, of the COMELEC enjoins—
SPECIAL CIVIL ACTION in the Supreme Court.
Surveys affecting national candidates shall not be published fifteen
Prohibition. (15) days before an election and surveys affecting local candidates
shall not be published seven (7) days before an election.
The facts are stated in the opinion of the Court.
Petitioner SWS states that it wishes to conduct an election
Quiason, Makalintal, Barot, Torres & Ibarra for
survey throughout the period of the elections both at the
petitioners. national and local levels and release to the media the results
499
VOL. 357, MAY 5, 2001 499 of such survey as well as publish them directly. Petitioner
Kamahalan Publishing Corporation, on the other hand, states
Social Weather Stations, Inc. vs. Commission on Elections
that it intends to publish
The Solicitor General for respondent. 500
500 SUPREME COURT REPORTS ANNOTATED
MENDOZA, J.:
Social Weather Stations, Inc. vs. Commission on Elections
election survey results up to the last day of the elections on candidates being merely allocated broadcast time during the
May 14, 2001. so-called COMELEC space or COMELEC hour, was
Petitioners argue that the restriction on the publication of
_____________
election survey results constitutes a prior restraint on the
exercise of freedom of speech without any clear and present 1207 SCRA 1 (1992).
danger to justify such restraint. They claim that SWS and 501
other pollsters conducted and published the results of surveys VOL. 357, MAY 5, 2001 501
prior to the 1992, 1995, and 1998 elections up to as close as Social Weather Stations, Inc. vs. Commission on Elections
two days before the election day without causing confusion upheld by this Court. In contrast, according to respondent, it
among the voters and that there is neither empirical nor states that the prohibition in §5.4 of R.A. No. 9006 is much
historical evidence to support the conclusion that there is an more limited.
immediate and inevitable danger to the voting process posed For reasons hereunder given, we hold that §5.4 of R.A. No.
by election surveys. They point out that no similar restriction 9006 constitutes an unconstitutional abridgment of freedom
is imposed on politicians from explaining their opinion or on of speech, expression, and the press.
newspapers or broadcast media from writing and publishing To be sure, §5.4 lays a prior restraint on freedom of speech,
articles concerning political issues up to the day of the expression, and the press by prohibiting the publication of
election. Consequently, they contend that there is no reason election survey results affecting candidates within the
for ordinary voters to be denied access to the results of election prescribed periods of fifteen (15) days immediately preceding
surveys which are relatively objective. a national election and seven (7) days before a local election.
Respondent Commission on Elections justifies the Because of the preferred status of the constitutional rights of
restrictions in §5.4 of R.A. No. 9006 as necessary to prevent speech, expression, and the press, such a measure is vitiated
the manipulation and corruption of the electoral process by by a weighty presumption of invalidity. Indeed, “any system
2

unscrupulous and erroneous surveys just before the election. of prior restraints of expression comes to this Court bearing a
It contends that (1) the prohibition on the publication of heavy presumption against its constitutional validity. . . . The
election survey results during the period proscribed by law Government ‘thus carries a heavy burden of showing
bears a rational connection to the objective of the law, i.e., the justification for the enforcement of such restraint.’ “ There is
3

prevention of the debasement of the electoral process thus a reversal of the normal presumption of validity that
resulting from manipulated surveys, bandwagon effect, and inheres in every legislation.
absence of reply; (2) it narrowly tailored to meet the “evils” Nor may it be argued that because of Art. IX-C, §4 of the
sought to be prevented; and (3) the impairment of freedom of Constitution, which gives the COMELEC supervisory power
expression is minimal, the restriction being limited both in to regulate the enjoyment or utilization of franchise for the
duration, i.e., the last 15 days before the national election and operation of media of communication, no presumption of
the last 7 days before a local election, and in scope as it does invalidity attaches to a measure like §5.4. For as we have
not prohibit election survey results but only require pointed out in sustaining the ban on media political
timeliness. Respondent claims that in National Press Club v. advertisements, the grant of power to the COMELEC under
COMELEC, a total ban on political advertisements, with
1
Art. IX-C, §4 is limited to ensuring “equal opportunity, time,
space, and the right to reply” as well as uniform and
reasonable rates of charges for the use of such media facilities prevent last-minute pressure on voters, the creation of
for “public information campaigns and forums among bandwagon effect to favor candidates, misinformation, the
candidates.” This Court stated:
4 “junking” of weak and “losing” candidates by their parties,
The technical effect of Article IX (C) (4) of the Constitution may be and the form of election cheating called “dagdag-bawas” and
seen to be that no presumption of invalidity arises in respect of invoking the State’s power to supervise media of information
exercises during the election period (pages 11-16), the dissenting
_____________
opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of
2 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988). Section 5.4, it may be seen that its limiting impact on the rights of
3 New York Times v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 824 free speech and of the press is not unduly repressive or
(1971). unreasonable. Indeed, it is a mere restriction, not an absolute
4 National Press Club v. COMELEC, 207 SCRA 1 (1992); Osmena v.
COMELEC, 288 SCRA 447 (1998).
prohibition, on the publication of election surveys. It is limited in
502 duration; it applies only during the period when the voters are
502 SUPREME COURT REPORTS ANNOTATED presumably contemplating whom they should elect
Social Weather Stations, Inc. vs. Commission on Elections ____________
of supervisory or regulatory authority on the part of the Comelec
for the purpose of securing equal opportunity among candidates for 5 National Press Club v. COMELEC, supra at 9.
political office, although such supervision or regulation may result 6 288 SCRA 447 (1998).
503
in some limitation of the rights of free speech and free press. 5

MR. JUSTICE KAPUNAN dissents. He rejects as


VOL. 357, MAY 5, 2001 503
inappropriate the test of clear and present danger for Social Weather Stations, Inc. vs. Commission on Elections
determining the validity of §5.4. Indeed, as has been and when they are most susceptible to such unwarranted
persuasion. These surveys may be published thereafter. (Pages 17-
pointed out in Osmeña v. COMELEC, this test was originally
6

18)
formulated for the criminal law and only later appropriated
The dissent does not, however, show why, on balance, these
for free speech cases. Hence, while it may be useful for
considerations should outweigh the value of freedom of
determining the validity of laws dealing with inciting to
expression. Instead, reliance is placed on Art. IX-C, §4. As
sedition or incendiary speech, it may not be adequate for such
already stated, the purpose of Art. IX-C, §4 is to “ensure equal
regulations as the one in question. For such a test is concerned
opportunity, time, and space and the right of reply, including
with questions of the gravity and imminence of the danger as
reasonable, equal rates therefor for public information
basis for curtailing free speech, which is not the case of §5.4
campaigns and forums among candidates.” Hence the validity
and similar regulations.
of the ban on media advertising. It is noteworthy that R.A. No.
Instead, MR. JUSTICE KAPUNAN purports to engage in
9006, §14 has lifted the ban and now allows candidates to
a form of balancing by “weighing and balancing the
advertise their candidacies in print and broadcast media.
circumstances to determine whether public interest [in free,
Indeed, to sustain the ban on the publication of survey results
orderly, honest, peaceful and credible elections] is served by
would sanction the censorship of all speaking by candidates
the regulation of the free enjoyment of the rights” (page 7).
in an election on the ground that the usual bombasts and
After canvassing the reasons for the prohibition, i.e., to
hyperbolic claims made during the campaigns can confuse What test should then be employed to determine the
voters and thus debase the electoral process. constitutional validity of §5.4? The United States Supreme
In sum, the dissent has engaged only in a balancing at the Court, through Chief Justice Warren, held in United States v.
margin. This form of ad hoc balancing predictably results in O’Brien:
sustaining the challenged legislation and leaves freedom of [A] government regulation is sufficiently justified [1] if it is within
speech, expression, and the press with little protection. For the constitutional power of the Government; [2] if it furthers an
anyone who can bring a plausible justification forward can important or substantial governmental interest; [3] if the
easily show a rational connection between the statute and a governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First
legitimate governmental purpose. In contrast, the balancing
Amendment freedoms [of speech, expression and press] is no
of interest undertaken by then Justice Castro in Gonzales v.
greater than is essential to the furtherance of that interest. 8

COMELEC, from which the dissent in this case takes its cue, This is so far the most influential test for distinguishing
7

was a strong one resulting in his conclusion that §50-B of R.A.


content-based from content-neutral regulations and is said to
No. 4880, which limited the period of election campaign and have “become canonical in the review of such laws.” It is 9

partisan political activity, was an unconstitutional noteworthy that the O’Brien test has been applied by this
abridgment of freedom of expression. Court in at least two cases. 10

Nor can the ban on election surveys be justifies on the Under this test, even if a law furthers an important or
ground that there are other countries—78, according to the substantial governmental interest, it should be invalidated if
Solicitor General, while the dissent cites 28—which similarly such governmental interest is “not unrelated to the
impose restrictions on the publication of election surveys. At suppression of free expression.” Moreover, even if the purpose
best this survey is inconclusive. It is noteworthy that in the is unrelated to the suppression of free speech, the law should
United States no restriction on the publication of election nevertheless be invalidated if the restriction on freedom of
survey results exists. It cannot be argued that this is because
expression is greater than is necessary to achieve the
the United States is a mature democracy. governmental purpose in question.
______________ Our inquiry should accordingly focus on these two
considerations as applied to §5.4.
727 SCRA 835, 888 (1969) (Castro, J., concurring and dissenting).
504 _______________
504 SUPREME COURT REPORTS ANNOTATED
8 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680 (1968) (bracketed numbers
Social Weather Stations, Inc. vs. Commission on Elections added).
Neither are there laws imposing an embargo on survey 9 G. GUNTHER & K. SULLIVA, CONSTITUTIONAL LAW 1217 (13th ed.

results, even for a limited period, in other countries. As 1997).


10 Adiong v. COMELEC, 207 SCRA 712 (1992); Osmeña v.
pointed out by petitioners, the United Kingdom, Austria,
COMELEC, supra.
Belgium, Denmark, Estonia, Finland, Iceland, Ireland, 505
Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, VOL. 357, MAY 5, 2001 505
and Ukraine, some of which are no older nor more mature Social Weather Stations, Inc. vs. Commission on Elections
than the Philippines in political development, do not restrict
the publication of election survey results.
First. Sec. 5.4 fails to meet criterion [3] of the O’Brien test 506
because the causal connection of expression to the asserted 506 SUPREME COURT REPORTS ANNOTATED
governmental interest makes such interest “not unrelated to Social Weather Stations, Inc. vs. Commission on Elections
the suppression of free expression.” By prohibiting the [The] protection even as to previous restraint is not absolutely
publication of election survey results because of the possibility unlimited. But the limitation has been recognized only in
that such publication might undermine the integrity of the exceptional cases . . . . No one would question but that a government
election, §5.4 actually suppresses a whole class of expression, might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and
while allowing the expression of opinion concerning the same
location of troops. On similar grounds, the primary requirements of
subject matter by newspaper columnists, radio and TV decency may be enforced against obscene publications. The security
commentators, armchair theorists, and other opinion makers. of the community life may be protected against incitements to acts
In effect, §5.4 shows a bias for a particular subject matter, if of violence and the overthrow by force of orderly government . . . .
not viewpoint, by preferring personal opinion to statistical Thus, contrary to the claim of the Solicitor General, the
results. The constitutional guarantee of freedom of expression prohibition imposed by §5.4 cannot be justified on the ground
means that “the government has no power to restrict that it is only for a limited period and is only incidental. The
expression because of its message, its ideas, its subject prohibition may be for a limited time, but the curtailment of
matter, or its content.” The inhibition of speech should be
11
the right of expression is direct, absolute, and substantial. It
upheld only if the expression falls within one of the few constitutes a total suppression of a category of speech and is
unprotected categories dealt with in Chaplinsky v. New not made less so because it is only for a period of fifteen (15)
Hampshire, thus:
12
days immediately before a national election and seven (7) days
There are certain well-defined and narrowly limited classes of immediately before a local election.
speech, the prevention and punishment of which have never been
This sufficiently distinguishes §5.4 from R.A. No. 6646,
thought to raise any Constitutional problem. These include the
§ll(b), which this Court found to be valid in National Press
lewd and obscene, the profane, the libelous, and the insulting or
‘fighting’ words—those which by their very utterance inflict injury Club v. COMELEC and Osmeña v. COMELEC. For the ban
14 15

or tend to incite an immediate breach of the peace. [S]uch imposed by R.A. No. 6646, §11(b) is not only authorized by a
utterances are no essential part of any exposition of ideas, and are specific constitutional provision, but it also provided an
16

of such slight social value as a step to truth that any benefit that alternative so that, as this Court pointed out
may be derived from them is clearly outweighed by the social in Osmeña, there was actually no ban but only a substitution
interest in order and morality. of media advertisements by the COMELEC space and
Nor is there justification for the prior restraint which §5.4 lays COMELEC hour.
protected speech. In Near v. Minnesota, it was held:
13
Second. Even if the governmental interest sought to be
promoted is unrelated to the suppression of speech and the
________________
resulting restriction of free expression is only incidental, §5.4
11 Police Dept. v. Moshley, 408 U.S. 92, 95, 33 L. Ed. 2d. 212, 216 (1972). nonetheless fails to meet criterion [4] of the O’Brien test,
12 315 U.S. 568, 571-572, 86 L. Ed. 1031, 1035 (1942). See John Hart namely, that the restriction be not greater than is necessary
Ely, Flag Desecration: A Case Study in the Roles of Categorization and to further the governmental interest. As already stated, §5.4
Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1497 (1975).
13 283 U.S. 697, 715-16, 75 L. Ed. 1357, 1367 (1931); See also New York
aims at the prevention of last-minute pressure on voters, the
Times v. United States, 403 U.S. 7-13, 29 L. Ed. 2d. 822 (1971).
creation of bandwagon effect, “junking” of weak or “losing” insufficient to justify such as diminishes the exercise of rights
candidates, and resort to the form of election so vital to the maintenance of democratic institutions.” 18

To summarize then, we hold that §5.4 is invalid because (1)


_______________
it imposes a prior restraint on the freedom of expression, (2)
14 Supra. it is a direct and total suppression of a category of expression
15 Supra. even though such suppression is only for a limited period, and
16 Art. IX-C, §4.
(3) the governmental interest sought to be promoted can be
507 achieved by means other than the suppression of freedom of
VOL. 357, MAY 5, 2001 507 expression.
Social Weather Stations, Inc. vs. Commission on Elections
cheating called “dagdag-bawas.” Praiseworthy as these aims _____________
of the regulation might be, they cannot be attained at the
Bk. V, Tit. I, Subtit. C, Ch. 1, §3 (emphasis added).
17

sacrifice of the fundamental right of expression, when such Scheider v. Irvington, 308 U.S. 147, 161, 84 L. Ed. 155 (1939).
18

aim can be more narrowly pursued by punishing 508


unlawful acts, rather than speechbecause of apprehension 508 SUPREME COURT REPORTS ANNOTATED
that such speech creates the danger of such evils. Thus, under Social Weather Stations, Inc. vs. Commission on Elections
the Administrative Code of 1987, the COMELEC is given the
17
On the other hand, the COMELEC contends that under Art.
power: IX-A, §7 of the Constitution, its decisions, orders, or
To stop any illegal activity, or confiscate, tear down, and stop resolutions may be reviewed by this Court only by certiorari.
any unlawful,libelous, misleading or false election The flaws in this argument is that it assumes that its
propaganda, after due notice and hearing.
Resolution 3636, dated March 1, 2001 is a “decision, order, or
This is surely a less restrictive means than the prohibition
resolution” within the meaning of Art. IX-A, §7. Indeed,
contained in §5.4. Pursuant to this power of the COMELEC,
counsel for COMELEC maintains that Resolution 3636 was
it can confiscate bogus survey results calculated to mislead
“rendered” by the Commission. However, the Resolution does
voters. Candidates can have their own surveys conducted. No
not purport to adjudicate the right of any party. It is not an
right of reply can be invoked by others. No principle of
exercise by the COMELEC of its adjudicatory power to settle
equality is involved. It is a free market to which each
the claims of parties. To the contrary, Resolution 3636 clearly
candidate brings his ideas. As for the purpose of the law to
states that it is promulgated to implement the provisions of
prevent bandwagon effects, it is doubtful whether the
R.A. No. 9006. Hence, there is no basis for the COMELEC’s
Government can deal with this natural-enough tendency of
claim that this petition for prohibition is inappropriate.
some voters. Some voters want to be identified with the
Prohibition has been found appropriate for testing the
“winners.” Some are susceptible to the herd mentality. Can
constitutionality of various election laws, rules, and
these be legitimately prohibited by suppressing the
regulations. 19

publication of survey results which are a form of expression?


WHEREFORE, the petition for prohibition is GRANTED
It has been held that “[mere] legislative preferences or beliefs
and §5.4 of R.A. No. 9006 and §24(h) of COMELEC Resolution
respecting matters of public convenience may well support
3636, dated March 1, 2001, are declared unconstitutional.
regulation directed at other personal activities, but be
SO ORDERED.
Davide, Jr. (C.J.), Vitug and Gonzaga-Reyes, JJ., electoral process by unscrupulous and erroneous surveys, it
concur. being claimed that the indiscriminate publication of surveys
Bellosillo, J., I join in the dissent of J. Kapunan. up to election day led to misinformation, junking of weak and
Melo, J., Please see Concurring Opinion. losing candidates by parties, and the creation of a bandwagon
Puno, J., Please see Concurring Opinion. effect in favor of certain candidates.
Panganiban, J., Please see Concurring Opinion. The majority opinion, written by Mr. Justice Mendoza
Kapunan, J., See dissenting opinion. concludes that the disputed provision constitutes an
Quisumbing, Buena and De Leon, Jr., J., On leave. unconstitutional abridgment of the freedom of speech,
Pardo, J., I join the dissent of J. Kapunan. expression and the press.
Ynares-Santiago, J. I hereby certify that J. Santiago I have to agree.
joins the dissent of J. Kapunan. (Davide, C.J.) Freedom of speech has been defined as the liberty to know,
Sandoval-Gutierrez, J., I join in the Dissent of Justice to utter, and to argue freely according to conscience, above all
Kapunan. liberties. It includes not only the right to express one’s views,
but also other cognate rights relevant to the free
_____________
communication of ideas, including the right to be informed on
19 See, e.g., Mutuc v. COMELEC, 36 SCRA 228 (1970); Gonzales v. matters of public concern. Indeed, the principle of free
COMELEC,27 SCRA 835 (1969). political discussion is one of the touchstones of democracy, it
509 being a guarantee that the people will be kept informed at all
VOL. 357, MAY 5, 2001 509 times, thereby ensuring their intelligent discharge of the
Social Weather Stations, Inc. vs. Commission on Elections responsibilities of sovereignty.
CONCURRING OPINION However, despite the primacy of free expression in the
hierarchy of fundamental civil liberties, the same is not
MELO, J.: absolute. It can be validly regulated. Regulation must,
however, be reasonable. It
Petitioners Social Weather Stations, Inc. and Kamahalan 510
Publishing Corporation, publisher of Manila Standard, have 510 SUPREME COURT REPORTS ANNOTATED
brought this action to declare as unconstitutional Section 5.4 Social Weather Stations, Inc. vs. Commission on Elections
of Republic Act No. 9006. Petitioners claim that said must be shown that the interest of the public, generally, as
provision, which prohibits the publication of surveys affecting distinguished from that of a particular class, requires such
national candidates fifteen days before an election, and regulation. Second, it must appear that the means used are
surveys affecting local candidates seven days before an reasonably necessary for the accomplishment of the purpose,
election, constitutes prior restraint on the exercise of the and not unduly oppressive upon individuals.
freedom of speech without any clear and present danger to The provision in dispute plainly constitutes prior restraint
justify such restraint. on the freedom of expression. As aptly stated by the noted
Respondent Commission on Elections, on the other hand, constitutionalist Fr. Bernas, “any system of prior restraint of
justifies the restrictions on the ground that the same is expression comes to this Court bearing a heavy presumption
necessary to prevent the manipulation and corruption of the against its constitutional validity, with the Government
carrying a heavy burden of showing justification for the oppressive upon survey organizations, which have been
enforcement of such a restraint” (The Constitution of the singled out for suppression, on the mere apprehension that
Republic of the Philippines: A Commentary, p. 142). their survey results will lead to misinformation, “junking,” or
Any act that restrains speech is hobbled by the presumption of contrived bandwagon effect.
invalidity and should be greeted with furrowed brows. It is the Admittedly, not all organizations which generate surveys
burden of the respondent . . . to overthrow this presumption. If it are legitimate. Some publish surveys are, at best,
fails to discharge this burden, its act of censorship will be struck disingenuous. Yet, the possibility of abuse does not authorize
down (Iglesia ni Kristo vs. CA,259 SCRA 529 [1996]).
government to restrict the activities of survey organizations
Respondent COMELEC has fallen short of the required effort at the expense of the freedom of expression. The very
to overthrow this presumption, it having failed to show that foundation of democracy is, as stated in Abrams vs. U.S. (250
the means used by Section 5.4 of Republic Act No. 9006 are
US 610), grounded on the belief
reasonably necessary for the accomplishment of the purpose, [T]hat the ultimate good desired is better reached by a free trade in
and that the same are not unduly oppressive upon ideas—that the best test of truth is the power of the thought to get
individuals. itself accepted in the competition of the market; and that truth is
It bears emphasizing that Section 5.4 limits itself to the only ground upon which their wishes can be safely carried out.
prohibiting the publication of surveys affecting national That, at any rate, is the theory of our Constitution. It is an
candidates fifteen days before an election, and surveys experiment, as all life is an experiment. Every year, if not every
affecting local candidates seven days before an election. It day, we have to wager our salvation upon some prophecy based
does not restrict reporting by trimedia of the merits or upon imperfect knowledge. While that experiment is part of our
demerits of national and local candidates and their chances at system I think that we should be eternally vigilant against
attempts to check the expression of opinions that we loathe and
the polls. Neither does it prohibit commentaries by radio
believe to be fraught with death, unless they so imminently
broadcasters and TV anchors, the expression of opinions by
threaten immediate interference with the lawful and pressing
columnists and editors of newspapers. In fact, the provision in purposes of the law that an immediate check is required to save the
dispute does not prohibit paid hacks from trumpeting the country.
qualifications of their candidates. In fine, while survey To reiterate, the prohibition against surveys within the
organizations who employ scientific methods and engage specified period is a prior and unreasonable restraint upon the
personnel trained in the statistical sciences to determine freedom of expression which is not reasonably necessary to
socio-political trends, are barred from publishing their results achieve the purpose of clean, honest, orderly and peaceful
within the specified periods, any two-bit scribbler elections.
masquerading as a legitimate journalist can For the foregoing reasons, I vote to grant the petition for
511
prohibition and to declare Section 5.4 of R.A. No. 9006
VOL. 357, MAY 5, 2001 511 unconstitutional.
Social Weather Stations, Inc. vs. Commission on Elections CONCURRING OPINION
write about the purported strong showing of his candidate
without any prohibition or restriction. The means used to PUNO, J.:
regulate free expression is thus, not reasonably necessary for
the accomplishment of the purpose. Worse, it is unduly
Petitioners seek to declare as unconstitutional Section 5.4 of about the substantive evil that the State has a right to
R.A. No. 9006, otherwise known as the “Fair Election Act,” prevent.” In Gonzales v. COMELEC, 7

which states:
512 ______________
512 SUPREME COURT REPORTS ANNOTATED 1 See also section 24 (H) of COMELEC Resolution No. 3636 implementing

Social Weather Stations, Inc. vs. Commission on Elections R.A. No. 9006.
Sec. 5.4. Surveys affecting national candidates shall not be 2 Ibid., section 1 (9) (e).

3 See section 13 of R.A. No. 9006.


published fifteen (15) days before an election and surveys affecting
4 See section 4 of Article III of the 1987 Constitution.
local candidates shall not be published seven (7) days before an
5 Philippine Blooming Mills Employees Organization v. Philippine
election.” 1

Blooming Mills, 51 SCRA 189 (1973).


“Surveys” refer to the “measurement of opinions and 6 249 US 47 (1919).

perceptions of the voters as regards a candidate’s popularity, 7 27 SCRA 835 (1969).

qualifications, platforms or a matter of public discussion in 513


relation to the election, including voters’ preference for VOL. 357, MAY 5, 2001 513
candidates or publicly discussed issues during the campaign Social Weather Stations, Inc. vs. Commission on Elections
period x x x.” Violation of the prohibition is punishable as an
2 Mr. Chief Justice Fernando explained that “the
election offense under section 264 of B.P. 881, otherwise term clear seems to point to a causal connection with the
known as the Omnibus Election Code. 3 danger of the substantive evil arising from the utterance
Petitioners assail the law as constitutionally infirmed on questioned. Present refers to the time element. It used to be
the ground that it is an abridgment of their freedom of speech identified with imminent and immediate danger. The danger
and of the press. I concur with the majority opinion penned
4 must not only be probable but very likely inevitable.” We have
by Mr. Justice Mendoza which is protective of speech and file the various balancing tests typified by the O’brien test, to wit:
8

this separate opinion by way of supplement. “[A] government regulation is sufficiently justified [1] if it is within
It is now deeply embedded in our jurisprudence that the constitutional power of the Government; [2] if it furthers an
freedom of speech and of the press enjoys a preferred status important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free
in our hierarchy of rights. The rationale is that the
5

expression; and [4] if the incidental restriction on alleged First


preservation of other rights depend on how well we protect our
Amendment freedoms [of speech, expression and press] is no
freedom of speech and of the press. In view of the preferred greater than is essential to the furtherance of that inter-est.”
status of freedom of speech and of the press, several tests have All of these tests have their own criticisms but I need not
been enunciated to protect it. We have the dangerous express any preference for any of these tests to resolve the
tendency test which now commands little following. We have case at bar, for regardless of the test used, the assailed
the clear and present danger test, the most libertarian test, provision is void on its face and patently unconstitutional.
formulated by Justice Holmes in Schenk v. United The provision in question is unconstitutional because it
States, viz.: “The question in every case is whether the words
6
constitutes a clear prior restraint on petitioners’ freedom of
used are used in such circumstances and are of such a nature speech and of the press. I like to stress on the prohibition
as to create a clear and present danger that they will bring against prior restraint for two reasons: (1) a historical study
of human rights will show that it is prior restraint that gave
rise to freedom of speech and of the press; and (2) there is a exclusively, immunity from previous restraints or
growing tendency, as noted by legal observers, for censorship” Our Constitutions of 1935, 1973, and 1987
governments to manipulate the free market of ideas in the guaranteed freedom of speech and of the press and
guise of merely regulating the time, manner and place of undeniably, we adopted the US model and its rationale. I
exercising freedom of speech and of the press. The tendency therefore emphasize that prior restraints on freedom of
appears in various masks. One of them is thru prior restraint speech and of the press should be given the strictest of
or thru subsequent punishment of acts regulating the exercise scrutiny in light of their inherent and invasive impact.
of freedom of speech and of the press. In the case at bar, the law bans publication of surveys
The invention of printing in the fifteenth century affecting national candidates 15 days before an election and
revolutionized the communication of ideas. Soon it dawned on surveys affecting local candidates 7 days before an election.
the temporal and spiritual authorities that printing should be Violation of the ban carries a criminal sanction. This is pure
controlled and thus and simple prior restraint on the communication and free flow
of ideas which should be made available to voters before they
_____________
exercise their right of suffrage, the core of their political
8See also US v. O’brien, 391 US 367, 20 L. Ed. 672 (1968). sovereignty. Prior restraint can be justified only on the
514 narrowest of ground like national security. The prior
514 SUPREME COURT REPORTS ANNOTATED
_______________
Social Weather Stations, Inc. vs. Commission on Elections
prior restraint on freedom of speech and of the press was 9 Press Control and Copyright in the 16th and 17th Centuries 17th

born. In 1501, Pope Alexander VI issued a Bull banning


9 Centuries, 17 Yale L.J. 841 (1920).
10 Licensing Act of 1662, see Holdsworth, A History of English Law 360-79
unlicensed printing. In England, printing became a monopoly
(2nd Ed., 1937).
and was strictly dispensed and controlled by the Crown. It 11 Emerson, The Doctrine of Prior Restraint in Law and Contemporary

was only in 1695 that the House of Commons declined to Problems, vol. 20, pp. 651 (1955) citing Blackstone’s Commentaries.
12 283 US 697 (1931).
reenact its licensing statute. In the 18th century, however, the
10

515
right of the press against prior licensing gained the important
status of a natural right in England. In 1791, The First
11
VOL. 357, MAY 5, 2001 515
Amendment to the US Constitution, prohibiting the Social Weather Stations, Inc. vs. Commission on Elections
abridgment of freedom of speech and of the press, was ratified restraint in the case at bar is not based on compelling reasons
by the States. Undoubtedly, the First Amendment is a bar in the category of national security and hence is intolerable
against any prior restraint, especially the classic form of for government should not be encouraged to take any step to
licensing by government authorities. Thus, in the United control the subject matter of speech, otherwise it will have the
States, the prohibition was elevated to a constitutional dangerous power to manipulate the form and shape of
principle. In 1931, in the leading case of Near v. thoughts that will compete in the market of ideas. In the free
Minnessota, the US Supreme Court, speaking thru Mr. Chief
12
market of ideas, government is bound to follow the laissez faire
Justice Hughes expressly ruled that “x x x liberty of the press, policy to the maximum and not the paternalistic policy of
historically considered and taken up by the Federal government knows best.
Constitution, has meant, principally although not
The provision in question is also void for its Social Weather Stations, Inc. vs. Commission on Elections
overbreadth. The overbreadth doctrine prohibits government nonsense record. Yet, the provision in question, because of its
from achieving its purpose by “means that sweep overbreadth, will bar petitioner from making its useful pre-
unnecessarily broadly, reaching constitutionally protected as election surveys. Certainly, there are less drastic means which
well as unprotected activity.” Stated otherwise, “the essence
13
government can utilize to achieve its objective of protecting
of overbreadth is that government has gone too far: its voters from false, misleading and unfair surveys.
legitimate interest can be satisfied without reaching so I vote to grant the petition.
broadly into the area of protected freedom.” 14
CONCURRING OPINION
In the case at bar, the prohibited surveys are all
inclusive. They include “measurement of opinions and PANGANIBAN, J.:
perceptions of the voters as regards a candidate’s popularity,
qualification, platforms or a matter of public discussion in I concur in the well-written ponencia of Mr. Justice Vicente V.
relation to the election including voter’s preference for Mendoza holding that Section 5.4 of Republic Act (RA) No.
1

candidates or publicly discussed issues during the campaign 9006 is unconstitutional. The provision is a patent
period x x x.” Clearly, the provision bans not only popularity infringement of the fundamental freedoms of expression and
surveys which show the winning and losing candidates of the press.
but all “measurement of opinions and perceptions of the In the recent case ABS-CBN Broadcasting Corporation v.
voters as regards a candidate’s x x x qualifications, platforms Commission on Elections, the Court en banc junked Comelec
2

or a matter of public discussion in relation to the election x x Resolution No. 98-1419 dated April 21, 1998, which restrained
x.” The inhibitory effect of this ban on free speech and the free the conduct of exit polls, a species of electoral surveys. We held
flow of information which voters need to guide their choice of that “the holding of exit polls and the dissemination of their
candidates is too much. Indeed, the ban does not distinguish results through mass media constitute an essential part of the
between biased and unbiased surveys or between surveys freedoms of speech and of the press. They cannot be banned
conducted with scientific accuracy and surveys done sloppily “totally in the guise of promoting clean, honest, orderly and
or between surveys that help enlighten voters in exercising credible elections. Quite the contrary, exit polls—properly
their right of suffrage and surveys that mislead. Petitioner conducted and publicized—can be vital tools in eliminating
Social Weather Stations, Inc. is one of our more reliable the evils of election-fixing and fraud.” As mankind pushes the
private non-stock, non-profit social research institutions with frontiers of science and technology in mass communications,
a no- so must the scope of free expression expand to cover the
3

conduct and the publication of surveys.


____________ In said case, we visited the long-standing fundamental
principle underlying democracies that the freedom of
13 J. Norwak, R. Rotunda & J. Young, Handbook on Constitutional Law 868

(2nd Ed., 1983).


expression is a preferredright, standing on a higher level than
14 Redish, The Warren Court, the Burger Court and the First Amendment other substantive liberties. Indeed, as this nation has recently
Overbreadth Doctrine, 78 Nw. U.L. Rev. 1035 (1983-4). witnessed once again,
516
516 SUPREME COURT REPORTS ANNOTATED _____________
1 ”Surveys affecting national candidates shall not be published fifteen (15) 1969; Philippine Blooming Mills Employees Organization v. Philippine
days before an election and surveys affecting local candidates shall not be Blooming Mills Co. Inc., 51 SCRA 191, June 5, 1973; National Press Club v.
published seven (7) days before an election.” Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v. Comelec, 207
2 323 SCRA 811, January 28, 2000. SCRA 712, 715, March 31, 1992.
3 Panganiban, Transparency, Unanimity & Diversity, 2000 ed p 376. 5 Sec. 4, Art. III, Constitution.

517 6 See Primicias v. Fugoso, 80 Phil. 71 (1948;; American Bible Society v. City

VOL. 357, MAY 5, 2001 517 of Manila; 101 Phil. 386 (1957); Iglesia ni Cristo v. MTRCB, 259 SCRA 529,
July 26, 1996.
Social Weather Stations, Inc. vs. Commission on Elections 7 Adiong v. Comelec, supra.

lessons of history, both political and legal, illustrate that 8 838 F. 2d. 380 (9th Cir. 1988), cited in ABS-CBN v. Comelec, supra.

freedom of thought and speech is an indispensable condition 518


of nearly every other form of freedom. Thus, our Constitution
4 518 SUPREME COURT REPORTS ANNOTATED
explicitly mandates that no law shall be passed abridging the Social Weather Stations, Inc. vs. Commission on Elections
freedoms of speech and of the press.” 5 DISSENTING OPINION
While the exercise of these basic rights could not be
absolute—liberty is never absolute—but may be subject to KAPUNAN, J.:
regulation by the state, any limitation should be justified by
a clear and present danger of such substantive character that Two seemingly conflicting rights or interests, both integral to
the state has a right to prevent. In other words, the evil
6
our democratic system, are involved in this case.
sought to be avoided must be so substantive as to justify a On the one hand are the freedoms of speech and of the
clamp over one’s mouth or a restraint of a writing instrument. 7
press, which, as often stated, are accorded a preferred status
There is, however, no compelling or justifiable reason for in our constitutional hierarchy, essential as they are to the
1

the prohibition made by Congress under the assailed law. The preservation and vitality of our civil and political
Comelec also utterly fails to convince me that a substantive institutions. The primacy, the high estate of these freedoms
2

danger, which the state has a right to prevent, lies lurking is a fundamental postulate of our constitutional system. 3

and threatening to explode if ignited by the conduct and the On the other hand, the Constitution requires the State to
dissemination of the prohibited surveys. “guarantee equal access to opportunities for public
No lover of freedom, no guardian of the Constitution and service,” and mandates Congress to “provide a system for
4

advocate of democracy can agree to this unreasonable securing the secrecy and sanctity of the ballot.” The State’s 5

restraint. interest in holding “free, orderly, honest, peaceful and credible


Indeed, Daily Herald Co. v. Munro held that the general
8
elections” cannot be denied.
6

interest of the state in insulating voters from outside _____________


influences is insufficient to justify speech regulation.
WHEREFORE, I vote to GRANT the Petition and to 1 Blo Umpar Adiong vs. Commission on Elections, 207 SCRA
DECLARE Section 5.4 of RA 9006 UNCONSTITUTIONAL. 712 (1992); Mutuc vs. Commission on Elections, 36 SCRA 228 (1970).
2 Philippine Blooming Mills Employees Organization vs. Philippine
Blooming Mills, 51 SCRA 189 (1973).
_____________ 3 Gonzales vs. Commission On Elections, 27 SCRA 835 (1969).

4 Article II; Section 26.


4 Supra, citing Salonga v. Cruz Paño, 134 SCRA 438, 458-459, February
5 Article V, Section 2.
18, 1985, See also Gonzales v. Comelec, 27 SCRA 835, 849, 856-857, April 18, 6 Article IX-C, Section 4 reads:
Sec. 4. The Commission may, during the election period, supervise or regulate the freedom of speech, the freedom of SWS is also purportedly
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special severely restricted.
privileges, or concessions granted by the Government or any subdivision, agency, or Although among our most cherished rights, the freedoms
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
of speech and of the press are not absolute or unlimited. In
time, and space, and the right to reply, including reasonable, equal rates therefor, for certain
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections. ____________
519
VOL. 357, MAY 5, 2001 519 7 An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and
Social Weather Stations, Inc. vs. Commission on Elections Credible Elections Through Fair Election Practices.
8 R.A. No. 9006, Section 1.

At the heart of the controversy is Section 5.4 of Republic Act 520


No. 9006, otherwise known as the “Fair Election Act,” which
7 8
520 SUPREME COURT REPORTS ANNOTATED
states that: Social Weather Stations, Inc. vs. Commission on Elections
Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
instances, this Court has allowed the regulation of the
shall not be published seven (7) days before an election. exercise of these freedoms vis-a-vis election-related laws.
“Surveys,” as used above, pertain to “election surveys,” which In Osmeña vs. Commission on Elections and National Press
9

in Section 5 thereof— Club vs. Commission on Elections, the law prohibiting


10

x x x refer to the measurement of opinions and perceptions of the newspapers, radio broadcasting and television station from
voters as regards a candidate’s popularity, qualifications, platforms selling or giving free of charge print space or air time for
or a matter of public discussion in relation to the election, including campaign or other political purposes was declared valid.
voters’ preference for candidates or publicly discussed issues during In Badoy vs. Commission of Elections, the prohibition on the
11

the campaign period, x x x publication of paid political advertisements outside the


The Fair Election Act was signed into law by the President on COMELEC space was likewise upheld. In Gonzales vs.
February 12, 2001. Pursuant to its authority under Section 13 Commission on Elections, where the prohibition on the early
12

thereof, the Commission on Elections (COMELEC) on March nomination of candidates and the limitation on the period of
1, 2001 promulgated through Resolution No. 3636 the election campaign or partisan political activity under
Implementing Rules and Regulations of the Fair Election Act. Republic Act No. 4880 was assailed for being violative of the
Section 24 of the implementing rules is freedoms of speech, of the free press, of assembly and of
a verbatim reproduction of Section 5.4. association, the Court declared the law not unconstitutional.
Petitioners contend that the subject provisions violate the Courts have employed certain tests to determine the
freedoms of speech and of the press enshrined in Section 4, validity of restrictions on the rights to free speech and free
Article III of the Constitution thus: press. The “dangerous tendency” rule provided that the State
No law shall be passed abridging the freedom of speech, of has the power to proscribe and punish speech which “creates
expression, or of the press x x x. a dangerous tendency which the State has a right to
As publisher of a newspaper, Kamahalan maintains that its prevent.” This formulation, however, had long been
13

right to freedom of the press is unduly infringed by Section abandoned in the United States as well as in this jurisdiction.
5.4. Insofar as publication (of surveys) is a component of the
The “clear and present danger” rule postulates that “the When a particular conduct is regulated in the interest of public
question in every case is whether the words are used in such order, and the regulation results in an indirect, conditional, partial
circumstances and are of such nature as to create a clear and abridgment of speech, the duty of the courts is to determine which
present danger that they will bring about the substantive of the two conflicting interests demands the greater protection
under the particular circumstances presented, x x x In essence, the
evils that Congress has the right to prevent.” This rule has
14

problem is one of weighing the probable effects of the statute upon


been applied in our jurisdiction in a number of cases. 15
the free exercise of the right of speech and assembly against the
______________ congressional determination x x x We must, therefore, undertake
the delicate and difficult task x x x to weigh the circumstances and
9 288 SCRA 447 (1998). to appraise the substantiality of the reasons advanced in support of
10 207 SCRA 1 (1992). the regulation of the free enjoyment of the rights. 20

11 35 SCRA 285 (1970).


The test is further explained thus:
12 Supra.

13 Gitlow v. New York, 268 U.S. 652, 69 L. Ed. 1138.


____________
14 Schenck v. United States, 249 U.S. 47, 63 L. Ed. 470, 473-474.

15 ABS-CBN Broadcasting Corp. vs. Commission on Elections, 323 SCRA


16 Supra.
811(2000,); Bio Umpar Adiong vs. Commission on Elections, supra; Imbong vs. 17 Id., at 898.
Ferrer,35 SCRA 28 (1970). 18 339 U.S. 383, 94 L. Ed. 925.

521 19 Id., at 944.

VOL. 357, MAY 5, 2001 521 20 Id., at 943.

Social Weather Stations, Inc. vs. Commission on Elections 522


Nevertheless, Associate Justice Fred Ruiz Castro, later Chief 522 SUPREME COURT REPORTS ANNOTATED
Justice, in his separate opinion in Gonzales vs. Commission Social Weather Stations, Inc. vs. Commission on Elections
on Elections, expressed the view that in determining the
16 The theory of balance of interests represents a wholly pragmatic
constitutionality of Republic Act No. 4880 assailed therein, approach to the problem of First Amendment freedom, indeed, to
another approach the so-called “balancing-of-interests” test, the whole problem of constitutional interpretation. It rests on the
theory that it is the Court’s function in the case before it when it
was more appropriate. He observed:
finds public interests served by legislation on the one hand, and
However useful the “clear and present danger” formulation was in
First Amendment freedoms affected by it on the other, to balance
the appraisal of a specific type of situation, there is fairly extensive
the one against the other and to arrive at a judgment where the
recognition that it is not a rule of universal applicability and
greater weight shall be placed. If on balance it appears that public
validity, not an automatic mechanism that relieves a court of the
interest served by restrictive legislation is of such character that it
need for careful scrutiny of the features of a given situation and
outweighs the abridgment of freedom, then the court will find the
evaluation of the competing interests involved. 17

legislation valid. In short, the balance-of-interests theory rests on


Justice Castro cited American Communications Association v.
the basis that constitutional freedoms are not absolute, not even
Douds, where the “balancing-of-interests” test was applied.
18
those stated in the First Amendment, and that they may be
In said case, the United States Supreme Court stated that “in abridged to some extent to serve appropriate and important public
suggesting that the substantive evil must be serious and interests.21

substantial, it was never the intention of [the U.S. Supreme In Zaldivar vs. Sandiganbayan, this Court reiterated that
22

Court] to lay down an absolutist test measured in terms of the clear-and-present danger test was not a cure-all to
danger to the Nation.” Chief Justice Vinzons, expounded:
19
freedom of speech controversies:
The “clear and present danger doctrine,” which test is invoked by balancing the circumstances to determine whether public
respondent’s counsel is not a magic incantation which dissolves all interest is served by the regulation of the free enjoyment of
problems and dispenses with analysis and judgment in the testing the rights.
of the legitimacy of claims to free speech, and which compels a court I believe that Congress did not exceed constitutional
to exonerate a defendant the moment the doctrine is invoked,
limitations in enacting Section 5.4.
absent proof of impending apocalypse. The “clear and present
Indisputably, the State has a legitimate interest in
danger” doctrine has been an accepted method for marking out the
appropriate limits of freedom of speech and of assembly in certain fostering an informed electorate. It has a compelling interest
26

contexts. It is not, however, the only test which has been recognized in protecting voters from confusion and undue influence and, 27

and applied by courts. 23 generally, in preserving the integrity of its election


Zaldivar cited the case of Lagunzad vs. Soto Vda. de process. In furtherance of these State interests, Congress is
28

Gonzales, where the Court also referred to the shortcomings


24 empowered to enact laws relative to the conduct of elections.
of the clear-and-present doctrine noted by Justice Castro It may not only regulate the time, manner and place of the
in Gonzales. Justice Melencio-Herrera further wrote: holding of the elections but may likewise regulate the election
campaigns and other activities relative thereto. 29

_____________ In enacting the Fair Election Act, Congress declared that


21 KAUPER, CIVIL LIBERTIES AND THE CONSTITUTION, p. 113 cited
the State “shall, during the election period, supervise or
in Separate Opinion, Castro, J., in Gonzales vs. Commission on Elections, regulate the enjoyment or utilization of all franchises or
supra. permits for the operation of media of communication or
22 170 SCRA 1 (1989).
information to guarantee or
23 Id., at 8.

24 92 SCRA 476 (1979).


____________
523
VOL. 357, MAY 5, 2001 523 25 Id., at 488.
Social Weather Stations, Inc. vs. Commission on Elections 26 Eu v. San Francisco Democratic Com., 489 US 214, 103 L. Ed. 2d. 271,
109 S. Ct. 1013.
x x x Another criterion for permissible limitation on freedom of 27 Burson v. Freeman, 119 L. Ed. 2d. 5.

speech and of the press, which includes such vehicles of the mass 28 Id.; ABS-CBN Broadcasting Corp vs. Commission on Elections, 323
media as radio, television and the movies, is the “balancing-of- SCRA 811(2000).
interests test.” The principle “requires a court to take conscious and 29 Gonzales vs. Commission on Elections, 27 SCRA 835 (1969).

detailed consideration of the interplay of interests observable in a 524


given situation or type of situation.” [Citations omitted.]
25 524 SUPREME COURT REPORTS ANNOTATED
It is my considered opinion that given the apparent conflict Social Weather Stations, Inc. vs. Commission on Elections
between petitioners’ rights of speech and press—rights ensure equal opportunity for public service, including access
enshrined in the Constitution, and the inherent power of to media time and space, and the equitable right to reply for
Congress to legislate on matters of public interest and public information campaigns and fora among candidates and
welfare, and in pursuance of the constitutional policy of assure free, orderly, honest, peaceful and credible
ensuring of “free, orderly, honest, peaceful and credible elections.” Further, said law aims to “ensure that bona fide
30

elections,” it is ultimately this Court’s function and duty to candidates for any public office shall be free from any form of
undertake the delicate and difficult task of weighing and harassment and discrimination.” 31
Towards these ends, Section 5.4 was incorporated Social Weather Stations, Inc. vs. Commission on Elections
specifically to prevent the evils brought about by election tation for credibility and then, at the ultimate hour, sell its services
surveys published immediately before an election. The to the highest bidder.
deliberations on the Senate Floor are revealing: Senator Roco recalled that earlier in the session, he had
Adverting to the bill of Senator Tatad, Senator Defensor Santiago discussed with Senator Defensor Santiago and some senators the
said that the country has no law regulating the conduct of surveys idea of not just lifting the ban on election propaganda but also of
and the activities of survey stations and private groups particularly giving fair protection to candidates, especially from the unfairness
those relating to political opinions. She said that some Western of reporting certain survey results during the campaign period. He
countries prohibit political opinion polls or surveys for certain added that the committee had been studying the rule in the United
periods before elections to avoid last minute pressure on voters as States where poll surveyors mention who authorized and paid for
politicians and political parties often cause the conduct and the survey, and what method was used, and furnish raw data to
dissemination of surveys to advance their political interests. anybody who feels aggrieved by the poll results. He agreed that
She informed the body that the Internet reported on a worldwide there must be a period when surveys should not be published
survey on the publication of poll results prior to elections where 30 because they influence elections through self-fulfilling predictions.
of the 78 countries surveyed apply legal restrictions on the However, Senator Roco expressed concern that a full-blown
publication of public opinion survey results comprising an embargo debate on another issue might impede the approval of the bill,
prior to general elections, which ranges from 24 hours to six weeks although he welcomed an amendment which would create a balance
before an election. She said that among the reasons for the of fair reporting and fair opportunity for candidates.
government restrictions cited Ly the Internet survey Senator Defensor Santiago warned that the fate of the country’s
were protecting the integrity of the democratic process, the rights of leadership should not be left in the hands of survey firms which are
privacy and national security considerations. not accountable to the people and possess no amount of sovereign
According to the report, she said, some countries in recent years power. Additionally, she expressed resentment that a public official
have prolonged their embargo periods—for example, Italy, from like herself should be treated like a can of sardines because poll
seven to 28 days; Canada, from no ban to three days; and Chile, surveys have reduced political life to a mere matter of appearances.
from one to seven days—while other countries have shortened or Senator Roco commented that all professions which deal with
withdrawn their embargoes—for example, Croatia, from three days communications are aware that the way a question is put can
to 24 hours; Colombia, from 10 to seven days; and Argentina, from influence the answer; the more simplistic question can give rise to
two weeks to no ban. a host of interpretations. On the other hand, he said, it is a matter
In this connection, Senator Defensor Santiago asked whether of public interest if there is an attempt to measure validity or
Senator Roco would consider an amendment providing for the acceptability of issues; still, full disclosure and transparency should
criteria for the publication of opinion surveys as she expressed fear apply to poll surveyors and to all who try to promote and protect
that an opinion survey firm might work diligently for some time in public welfare. 32

order to establish a repu- The original proposal was a 30-day restriction on the
publication of surveys. Senator Flavier suggested the deletion
____________ of the restriction, while Senator Osmeña was amenable to a shorter period of 3 days.
33 34 Senators Roco and Defensor-Santiago

vigorously opposed the deletion. Senator Roco said that:

30 Republic Act No. 9006, Section 2. 526


31 Ibid. 526 SUPREME COURT REPORTS ANNOTATED
525
VOL. 357, MAY 5, 2001 525 Social Weather Stations, Inc. vs. Commission on Elections
x x x the committee cannot accept the deletion of the prohibition as ____________
he observed that in the Philippines, the bandwagon effect is part of
campaign planning. He recalled that in 1969, the influence of
35 Id., at 267.
36 Id., at 267-268.
propaganda was so evident: every single pole or space was plastered 37 Id., at 268.

with “Marcos-Lopez” posters and for the duration of the one-year 527
campaign period, the newspapers kept on repeating that Marcos- VOL. 357, MAY 5, 2001 527
Lopez was unbeatable that after a while, the people believed it. He
Social Weather Stations, Inc. vs. Commission on Elections
explained that it is the publication and not the conduct of surveys
that would be prohibited in this Act. However, he pointed out that 30-day limitation, was reduced to 15 days with respect to
the surveys would be useful to senatorial candidates, especially surveys affecting national candidates.
those who wish to land in the top six slots, because their names Evidently, Congress found that the publication of surveys
would be repeatedly mentioned on TV so that the voters might be within the prohibited period inordinately works against
influenced to vote for them. He said that candidates particularly candidates who are shown to be “losing.” The assailed
those who do not have access to TV and radio have no money to provision thus seeks to avert the “bandwagon effect”
influence publications should be given equal break during the 30- supposedly caused by the publication of election surveys. The
day period. He appealed the Members to support the committee’s bandwagon effect results when a voter opts for a candidate or
position.35

candidates whom the surveys reveal as the leading contender


Senator Defensor-Santiago concurred with Senator Roco: or contenders, the voter believing, rightly or wrongly, that the
x x x She pointed out that at the start of the debate, the Body was
candidate or candidates whom the voter actually prefers
of the consensus that the operating principles of the bill should be
equality and impartiality. She opined that these principles would would lose anyway, as indicated in the surveys. The
be violated if the Body would delete the prohibition. Moreover, she bandwagon effect produces more votes for the “winning”
argued that a political neophyte who deserves exposure because of candidate ordained as such by the surveys and less votes for
his honesty, competence and efficiency would probably not be in the the “losing” candidate. Surveys add to the prospects of the
winning circle until the crucial decisive few days before the election. “winner” and lessen that of the “loser,” who is thereby
She said that the publication of a survey at any point earlier than deprived of an equal opportunity to get elected. Hence, the
that would be detrimental to the candidate and to national interest. surveys take the form of a self-fulfilling prophecy.
She expressed support for Senator Roco’s appeal to maintain the Ideally, a citizen ought to vote for a candidate based on the
present provision. She said that the freedom of expression in a latter’s personal qualifications and platform for governance.
constitutional dimension was not relevant to the discussion This is the ideal that the law aims to achieve; surveys
because a candidate who can afford it can ask any agency to conduct
published during the prescribed period before the elections
a survey; however, out of compelling national interest in the
Philippine culture context, the State prohibits the publication of have been deemed by Congress to frustrate this objective.
surveys within a certain period so as to avoid manipulating the The prospect of misinformation magnifies the dangers of
minds of the electorate and to preserve the principle of equality and the bandwagon effect. There is nothing to prevent
impartiality. 36 unscrupulous interests from procuring the services of an
Eventually, the position of Senators Roco and Defensor- enterprise masquerading as a “credible” research institution
Santiago prevailed although,
37 after the Bicameral to conduct “surveys” with predetermined results, and cause
Conference, the original their publication. Worse, there is nothing to prevent the
simple publication of entirely false results. The evil of the
bandwagon effect caused by election surveys, whether Truman in 1948, and of Wilson over Heath in Britain in 1970. Most
absolutely accurate or utterly untrue, is further enhanced by pollsters considered the outcome of the 1980 presidential election
the pervasiveness of media. Advances in technology have in the United States too close to call, yet Ronald Reagan won by a
widened the electorate’s access to both information and, landslide. The 1992 surprise victory of the Conservatives over
Labour in Britain is another similar example, x x x
regrettably, to misinformation.
THE IMPACT OF POLLING ON THE ELECTORAL PROCESS
It may be argued that propaganda portraying a candidate
as possessing certain virtues or espousing certain causes, 1. A.Direct Effects
regardless of the truth of these claims, also influence the voter
in making his or her choice. The distinction lies in that a Because polls are generally perceived to be accurate and
survey lulls the voter into thinking that the election is over scientific, the debate on polling centres largely whether it
but the counting, and that undermines the democratic process by influencing electoral
528 behaviour and election results. Some political strategists and
528 SUPREME COURT REPORTS ANNOTATED observers argue that the publication of polls gives an unfair
Social Weather Stations, Inc, vs. Commission on Elections advantage to parties or candidates whose fortunes are seen to be
his vote for a losing candidate would not matter in the end. improving. The so-called “bandwagon” effect assumes that
While election propaganda expressly urge the voter to choose knowledge of a popular “tide” will likely change voting intentions in
a candidate because of his qualifications and causes, the favour of the frontrunner, that many electors feel more comfortable
sup-
surveys, clothed with the mantle of statistics and couched in 529
esoteric terminology, implicitly urge the voter to choose a VOL. 357, MAY 5, 2001 529
candidate because of his popularity. This persuasive effect is
Social Weather Stations, Inc. vs. Commission on Elections
unique to surveys; it is a feature absent in election
porting a popular choice or that people accept the perceived
propaganda. collective wisdom of others as being enough reason for supporting a
This congressional concern regarding the bandwagon effect candidate.
is supported by a study cited by the Solicitor General: The bandwagon phenomenon, however, is dismissed by those
It is noteworthy that it is easier to translate voting intentions into who argue that voters do not pay much attention to poll results in
potential seats in a two-party system than in a multi-party the first place, that not everyone believes them, and that it is not
arrangement. The accuracy of election polls is also determined by important for everyone to be on the winning side. Furthermore,
actual voter turnout; pre-election surveys can sometimes be out of while some voters may want to be on the victorious side, at least a
date by the time they are reported, x x x. Last, polls can present an few will rally to support the expected loser out of sympathy—the so-
opportunity for deliberate misrepresentation or connivance by called “underdog” effect—which would cancel out or annul any
those who publish survey results; many examples of this practice shifts in preference.
by political parties have been cited. Advocacy groups seeking to Although academics in the United States have long been divided
influence the public agenda can also commission polls for public over the impact of published polls on the outcome of elections,
release and may draft questions to support their case or point of recent research supports the proposition that their publication can
view. In short, public opinion surveys are blunt instruments of influence a close election, with the most impact occurring late in a
prediction and are susceptible to many forms of error. campaign. Recent studies in Canada also support the notion that
Opponents of political polling point to notable failures like the polls published during political campaigns can create the “politics
predicted victories of Landon over Roosevelt in 1936, of Dewey over of expectations,” a situation that stimulates the bandwagon effect
and promotes “strategic voting,” in which voting is influenced by the focus of public debate, and denigrates political leaders and
chances of winning. For example, citizens may cast ballots for their institutions. 39

second-choice candidate who appears to have a better chance than The deliberations during the Bicameral Conference also
the first choice of defeating a disliked candidate or party. Such intimate another purpose in passing the challenged
behaviour is said to be increasing in Canada as close three-party provisions, that is, to prevent the nefarious, election scheme
races become more common. It is therefore argued that voters known as “dagdagbawas.” Dagdag-bawas, a phenomenon
making such strategic choices have every right to expect that the
peculiar to Philippine elections, takes place when votes cast
results of opinion surveys are scientifically valid. 38

in favor of one candidate are deducted then credited to


The same study also pointed out other “indirect effects” of
another. Senator Roco also observed that last-minute surveys
surveys published during the election period, that it detracts
generate “junking” of candidates at the tail end of the surveys
from the “real” issues of the election and affects a candidate’s
by their very own party-mates or supporters.
momentum:
CHAIRMAN ROCO. I do not want to say it that way. I only said,
that if you will target people to campaign against, you will target
1. B.Indirect Effects people who are outside 1 to 6 because it is a waste of time to try to
drag No. 6 down to 13. Legitimate campaign.
The indirect effects of polls during elections may be as important as Mapababa mo man ang No. 1, umabot ng no. 6, he or she still
their possible direct influence. Because of the multiplicity of occupies one post. Hindi nawawala. Ang tatargetin mo, 9, 10, 11,
published surveys and the attention they receive from the media, parang junking doon sa sample ballots mawawala yong mga
some charge that polls detract from discussion of the “real” issues. mabababa because yon ang puedeng mawala. Yong 1 to 6 or 1 to 8,
Indeed, many describe news coverage of Canadian elections as ang hirap-hirap nang tanggalin.
being analogous to that of a sporting event or “horse-race,” with So, in your sample ballots you don’t care. Sa sample ballots, kung
serious analysis of the issues or investigation into areas of voter sa surveys 10, 11, 12, eh, lalo kung 12, naku, candidate ‘yon for
concern being largely ignored. The media’s disappearance. Yon ang mga napapalitan ang mga favorite. Hindi
ba? Sa Bicol tanggal yon. Ang lalabas doon Bicolano lang. Di ba?
___________
Kung mahina-hina ang No. 12, tanggal na yon. Mahina-hina ang
38 Comment of the Solicitor General, pp. 8-11, citing Public Polling in Canada No. 11, tanggal na yon sa mga regions. Every region has its own
by Claude Emery, at http://www.parl.gc.ca/information/library/PRBpubs. favorite. Papasok na sa sample ballots. Walang dayaan yon. But
530 you will not try to eliminate somebody who is impossible to
530 SUPREME COURT REPORTS ANNOTATED eliminate. What is your interest? Loren is No. 1, so,
Social Weather Stations, Inc. vs. Commission on Elections
_____________
emphasis on who is winning and who is losing (as well as on the
campaign “style” of leaders and their parties) may also result in so- 39 Id.
called “leader-fixation.’’ As one scholar explains: 531
Polls conducted throughout the campaign . . . focus on leadership VOL. 357, MAY 5, 2001 531
in an attempt to predict the outcome of the election and to explain Social Weather Stations, Inc. vs. Commission on Elections
it in terms of leader appeal. The polls are presented as measures to
she becomes No. 3. Who cares! Maybe, she’s a bit unhappy. But she
gauge how the leaders’ campaigns are faring. In this sense the
is still senator, you see!
40

media coverage misrepresents the political system, narrows the


Senator Legarda-Leviste also expressed that “it is the fear of
some of the other senators that because they are perceived to
be the last three or four slot occupants and they could be the rights of free speech and of the press is not unduly repressive
target of a ‘dagdag-bawas.’ ” 41 or unreasonable. Indeed, it is a mere restriction, not an
That the law, in Sections 5.2 and 5.3, prescribes certain absolute prohibition, on the publication of election surveys. It
requirements in the publication of surveys and allows the is limited in duration; it applies only during the period when
inspection thereof do not suffice to thwart the dangers sought the voters are presumably contemplating whom they should
to be avoided by Section 5.4. Election surveys are more in elect and when they are most susceptible to such unwarranted
demand as the elections draw closer. The reason is obvious. persuasion. These surveys may be published thereafter.
The public rating of the candidates shifts from time to time Our electoral system and processes are not necessarily of
over the months. But a survey taken very close to the election the same level of political maturity that countries like the
might be taken as indicative of a firm and final tally of the United States and other more developed countries have
results, giving more motive to fly-by-night pollsters or survey attained. It is noteworthy that numerous other countries
groups controlled by vested interests to manipulate the recognize the deleterious effects on the electoral process by
survey results. It is conceded that Sections 5.2 and 5.3 affords the publication of surveys immediately before the elections.
interested parties an opportunity to examine and analyze the Accordingly, they impose similar restrictions, although
published surveys and to refute or confirm their accuracy. varying as to the periods: Turkey and Luxembourg, 30 days;
However, these regulations lose their efficacy during the South Africa, 42 days; Italy, 28 days; Indonesia, 21 days; Peru,
period contemplated by Section 5.4 because said interested Venezuela and Uruguay, 15 days; Poland, 12 days; France,
parties would no longer have adequate time to test the Hungary, Portugal, Switzerland, Chile, Columbia and Mexico,
veracity of said surveys, especially if they are published, say, 7 days; Spain, 5 days; Russia, Australia and Bolivia, 2 days;
a day before the elections. 42 Fiji, New Zealand, Armenia, Belarus, Bulgaria, Croatia,
Khazakstan and Lithuania, 1 day. 43

______________
The reasons advanced in support of Section 5.4, far from
40 Transcript of Committee Meetings, Bicameral Conference Committee on being matters of mere legislative preferences or beliefs
the Disagreeing Provisions of Senate Bill No. 1742 and House Bill No. 9000, regarding the evils sought to be remedied, sufficiently justify
November 23, 2000, p. 32. the restriction on such vital rights as the freedoms of speech
41 Id., at 36.

42 Alvin Capino, in his column “Counterpoint” (Today, April 21, 2001) had
and of the press. It
this to say:
One more reason why survey results for senators should be taken with a grain of salt
_______________
is the explanation of Felipe Miranda of Pulse Asia about the adjustment pollsters make
because of the socalled command votes. votes. Pulse Asia places the command votes at a low 1.5 million votes. The number, they
Command votes are the block votes of religious groups like Iglesia ni Cristo and El say, would have no major impact on the election results.
Shaddai. Members of these groups vote according to the instructions of their leaders. The problem of pollsters is that members of the Iglesia ni Cristo with a voting
According to those who attended a recent briefing of Miranda, the head of Pulse strength of at least three million do not participate in surveys. The fact that INC
Asia places minor weight on the so-called command members are not covered by surveys could distort survey results.
532 A senatorial candidate, for example, who thinks that he is safe in, say, his ranking
of 8th or 9th might suddenly find himself outside the Magic 13 simply because the
532 SUPREME COURT REPORTS ANNOTATED senatorial candidates below him were supported by the INC” and he was not.
Social Weather Stations, Inc. vs. Commission on Elections Senate Journal, Session No. 22, October 2, 2000, p. 267.
43

533
Viewed in the light of the legitimate and significant objectives
of Section 5.4, it may be seen that its limiting impact on the
VOL. 357, MAY 7, 2001 533
People vs. Palabrica ABC DEVELOPMENT CORPORATION,
bears stressing that it is Congress, not this Court, which is petitioner, vs.COMMISSION ON ELECTIONS, respondent.
primarily charged with the determination of the need for
regulation of such activities. Thus, insofar as the need for G.R. No. 205592. September 2, 2014.*
regulation of the publication of election surveys within the MANILA BROADCASTING COMPANY, INC. and NEW-
periods laid down in Section 5.4 is concerned, this Court is in SOUNDS BROADCASTING NETWORK, INC.,
no position to substitute its judgment as to the necessity or petitioners, vs.COMMISSION ON ELECTIONS, respondent.
desirability of the same for that of Congress.44

IN VIEW OF THE FOREGOING, I vote to DISMISS THE G.R. No. 205852. September 2, 2014.*
PETITION. KAPISANAN NG MGA BRODKASTER NG PILIPINAS
Prohibition granted, Sec. 5.4 of RA No. 9006 and Sec. 24(h) (KBP) and ABS-CBN CORPORATION,
of COMELEC Resolution No. 3636 declared unconstitutional. petitioners, vs. COMMISSION ON ELECTIONS, respondent.
Note.—View that the freedom of the press is respected by
the law and by the COMELEC is not a reason to trample upon G.R. No. 206360. September 2, 2014.*
the candidates’ constitutional right to free speech and the RADIO MINDANAO NETWORK, INC.,
people’s right to information. (Osmeña vs. Commission on petitioner, vs.COMMISSION ON ELECTIONS, respondent.
Elections, 288 SCRA 447 [1998]) Remedial Law; Improper Remedy; The Supreme Court (SC) has
in the past seen fit to step in and resolve petitions despite their being
——o0o—— the subject of an improper remedy, in view of the public importance
of the issues raised therein.—Respondent claims that certiorari and
© Copyright 2018 Central Book Supply, Inc. All rights reserved. prohibition are not the proper remedies that petitioners have taken
_______________

* EN BANC.
89
VOL. 734, SEPTEMBER 2, 2014 89
GMA Network, Inc. vs. Commission on Elections
to question the assailed Resolutions of the COMELEC.
Technically, respondent may have a point. However, considering
the very important and pivotal issues raised, and the limited time,
G.R. No. 205357. September 2, 2014.* such technicality should not deter the Court from having to make
GMA NETWORK, INC., petitioner, vs. COMMISSION ON the final and definitive pronouncement that everyone else depends
ELECTIONS, respondent. for enlightenment and guidance. “[T]his Court has in the past seen
SENATOR ALAN PETER “COMPAÑERO” S. CAYETANO, fit to step in and resolve petitions despite their being the subject of
petitioner-intervenor. an improper remedy, in view of the public importance of the issues
raised therein.
Constitutional Law; Freedom of Speech and the Press; Locus
G.R. No. 205374. September 2, 2014.* Standi; If in regard to commercial undertakings, the owners may
have the right to assert a constitutional right of their clients, with
more reason should establishments which publish and broadcast the previous law, no candidate was allowed to directly buy or
have the standing to assert the constitutional freedom of speech of procure on his own his broadcast or print campaign advertisements,
candidates and of the right to information of the public, not to speak and that he must get it through the COMELEC Time or COMELEC
of their own freedom of the press. So, we uphold the standing of Space, R.A. No. 9006 relieved him or her from that restriction and
petitioners on that basis.—If in regard to commercial undertakings, allowed him or her to broadcast time or print space subject to the
the owners may have the right to assert a constitutional right of limitations set out in the law. Congress, in enacting R.A. No. 9006,
their clients, with more reason should establishments which felt that the previous law was not an effective and efficient way of
publish and broadcast have the standing to assert the giving voice to the people. Noting the debilitating effects of the
constitutional freedom of speech of candidates and of the right to previous law on the right of suffrage and Philippine democracy,
information of the public, not to speak of their own freedom of the Congress decided to repeal such rule by enacting the Fair Election
press. So, we uphold the standing of petitioners on that basis. Act.
Commission on Elections; The Commission on Elections Same; Same; Congress intended to provide a more expansive
(COMELEC) is not free to simply change the rules especially if it has and liberal means by which the candidates, political parties, citizens
consistently interpreted a legal provision in a particular manner in and other stakeholders in the periodic electoral exercise may be given
the past.—There is no question that the COMELEC is the office a chance to fully explain and expound on their candidacies and
constitutionally and statutorily authorized to enforce election laws platforms of governance, and for the electorate to be given a chance
but it cannot exercise its powers without limitations — or to know better the personalities behind the candidates.—It is
reasonable basis. It could not simply adopt measures or regulations therefore ineluctable to conclude that Congress intended to provide
just because it feels that it is the right thing to do, in so far as it a more expansive and liberal means by which the candidates,
might be concerned. It does have discretion, but such discretion is political parties, citizens and other stakeholders in the periodic
something that must be exercised within the bounds and intent of electoral exercise may be given a chance to fully explain and
the law. The COMELEC is not free to simply change the rules expound on their candidacies and platforms of governance, and for
especially if it has consistently interpreted a legal provision in a the electorate to be given a chance to know better the personalities
particular manner in the past. If ever it has to change the rules, the behind the candidates. In this regard, the media is also given a very
same must be properly explained with sufficient basis. important part in that undertaking of providing the means by
Election Law; Political Ad Ban; The law, on its face, does not which the political exercise becomes an interactive process. All of
justify a conclusion that the maximum allowable airtime should be these would be undermined and frustrated with the kind of
based on the totality of possible broadcast in all television or radio regulation that the respondent came up with.
90 Same; Same; Airtime Limits; Section 9(a) of Commission on
90 SUPREME COURT REPORTS ANNOTATED Elections (COMELEC) Resolution No. 9615, with its adoption of the
GMA Network, Inc. vs. Commission on Elections “aggregate-based” airtime limits unreasonably restricts the guaran-
stations.—The law, on its face, does not justify a conclusion 91
that the maximum allowable airtime should be based on the totality VOL. 734, SEPTEMBER 2, 2014 91
of possible broadcast in all television or radio stations. Senator GMA Network, Inc. vs. Commission on Elections
Cayetano has called our attention to the legislative intent relative teed freedom of speech and of the press.—The guaranty of
to the airtime allowed — that it should be on a “per station” basis. freedom to speak is useless without the ability to communicate and
This is further buttressed by the fact that the Fair Election disseminate what is said. And where there is a need to reach a large
Act (R.A. No. 9006) actually repealed the previous provision, audience, the need to access the means and media for such
Section 11(b) of Republic Act No. 6646, which prohibited direct dissemination becomes critical. This is where the press and
political advertisements — the so-called “political ad ban.” If under broadcast media come along. At the same time, the right to speak
and to reach out would not be meaningful if it is just a token ability country. Accordingly, for a national candidate to really reach out to
to be heard by a few. It must be coupled with substantially as many of the electorates as possible, then it might also be
reasonable means by which the communicator and the audience necessary that he conveys his message through his advertisements
could effectively interact. Section 9(a) of COMELEC Resolution No. in languages and dialects that the people may more readily
9615, with its adoption of the “aggregate-based” airtime limits understand and relate to. To add all of these airtimes in different
unreasonably restricts the guaranteed freedom of speech and of the dialects would greatly hamper the ability of such candidate to
press. express himself — a form of suppression of his political speech.
Constitutional Law; Freedom of Speech and of the Press; Same; Same; Same; Candidates and political parties need
Freedom of speech, of expression, and of the press are at the core of adequate breathing space — including the means to disseminate
civil liberties and have to be protected at all costs for the sake of their ideas. This could not be reasonably addressed by the very
democracy.—Political speech is one of the most important restrictive manner by which the respondent implemented the time
expressions protected by the Fundamental Law. “[F]reedom of limits in regard to political advertisements in the broadcast
speech, of expression, and of the press are at the core of civil media.—It has also been said that “[c]ompetition in ideas and
liberties and have to be protected at all costs for the sake of governmental policies is at the core of our electoral process and of
democracy.” Accordingly, the same must remain unfettered unless the First Amendment freedoms.” Candidates and political parties
otherwise justified by a compelling state interest. need adequate breathing space — including the means to
Election Law; Political Ad Ban; Airtime Limits; The assailed disseminate their ideas. This could not be reasonably addressed by
rule on “aggregate-based” airtime limits is unreasonable and the very restrictive manner by which the respondent implemented
arbitrary as it unduly restricts and constrains the ability of the time limits in regard to political advertisements in the
candidates and political parties to reach out and communicate with broadcast media.
the people.—The assailed rule on “aggregate-based” airtime limits Same; Same; Same; For failing to conduct prior hearing before
is unreasonable and arbitrary as it unduly restricts and constrains coming up with Resolution No. 9615, said Resolution, specifically in
the ability of candidates and political parties to reach out and regard to the new rule on aggregate airtime is declared defective and
communicate with the people. Here, the adverted reason for ineffectual.—For failing to conduct prior hearing before coming up
imposing the “aggregate-based” airtime limits — leveling the with Resolution No. 9615, said Resolution, specifically in regard to
playing field — does not constitute a compelling state interest the new rule on aggregate airtime is declared defective and
which would justify such a substantial restriction on the freedom of ineffectual.
candidates and political parties to communicate their ideas, Same; Same; Same; Due Process; It is a basic postulate of due
philosophies, platforms and programs of government. And, this is process, specifically in relation to its substantive component, that
specially so in the absence of a clear-cut basis for the imposition of any governmental rule or regulation must be reasonable in its
such a prohibitive measure. In this particular instance, what the operations and its impositions.—It is a basic postulate of due
COMELEC has done is analogous to letting a bird fly after one has process, specifically in relation to its substantive component, that
clipped its wings. It is also particularly unreasonable and whimsical any governmental rule or regulation must be reasonable in its
to adopt the aggregate-based time limits on broadcast time when operations and its impositions. Any restrictions, as well as
we consider that the Philippines is sanctions, must be reasonably related to the purpose or objective of
92 the government in a manner that would not work unnecessary and
92 SUPREME COURT REPORTS ANNOTATED unjustifiable burdens on the citizenry.
GMA Network, Inc. vs. Commission on Elections 93
not only composed of so many islands. There are also a lot of VOL. 734, SEPTEMBER 2, 2014 93
languages and dialects spoken among the citizens across the GMA Network, Inc. vs. Commission on Elections
enforce Section 2(7), Article IX-C. They are meant to advance the
Same; Same; Same; Constitutional Law; Right to Reply; The government interest of minimizing election spending.
Constitution itself provides as part of the means to ensure free, 94
orderly, honest, fair and credible elections, a task addressed to the 94 SUPREME COURT REPORTS ANNOTATED
Commission on Elections (COMELEC) to provide for a right to GMA Network, Inc. vs. Commission on Elections
reply.—The Constitution itself provides as part of the means to
ensure free, orderly, honest, fair and credible elections, a task Same; Same; Same; View that the capping of campaign airtime
addressed to the COMELEC to provide for a right to reply. Given by Section 6.2 of Republic Act (RA) 9006 and Section 9(a) of the
that express constitutional mandate, it could be seen that the Resolution advances the state interest of minimizing election
Fundamental Law itself has weighed in on the balance to be struck spending arbitrarily and the incidental restriction on the freedoms
between the freedom of the press and the right to reply. of speech and expression these provisions impose is greater than is
Accordingly, one is not merely to see the equation as purely between essential to the furtherance of such state interest, thus failing the
the press and the right to reply. Instead, the constitutionally- second and fourth prongs of O’Brien.—Undoubtedly, it was within
mandated desiderata of free, orderly, honest, peaceful, and credible the power of Congress to enact Section 6.2 of RA 9006 and of
elections would necessarily have to be factored in trying to see COMELEC to adopt Section 9(a) of the Resolution to enforce Section
where the balance lies between press and the demands of a right- 2(7), Article IX-C of the Constitution. Nor is there any question that
to-reply. the government interest of minimizing election spending under
Carpio, J., Separate Concurring Opinion: Section 2(7) of Article IX-C is unrelated to the suppression of free
Election Law; Political Ad Ban; Airtime Limits; Constitutional expression, concerned as it is in the nonspeech government interest
Law; View that in capping the broadcast advertising time of of maximizing competition in the political arena. As explained
candidates and political parties, neither Congress nor the below, however, the capping of campaign airtime by Section 6.2 of
Commission on Elections (COMELEC) (under Section 6.2 of RA 9006 and Section 9(a) of the Resolution advances the state
Republic Act [RA] 9006 and Section 9(a) of the Resolution, interest of minimizing election spending arbitrarily and the
respectively) supervised or regulated the enjoyment and utilization incidental restriction on the freedoms of speech and expression
of franchises of media outfits under Section 4, Article IX-C.—In these provisions impose is greater than is essential to the
capping the broadcast advertising time of candidates and political furtherance of such state interest, thus failing the second and
parties, neither Congress nor the COMELEC (under Section 6.2 of fourth prongs of O’Brien.
RA 9006 and Section 9(a) of the Resolution, respectively) supervised Same; Same; Same; Constitutional Law; View that by ignoring
or regulated the enjoyment and utilization of franchises of media the amount of broadcasting expenses incurred by candidates and
outfits under Section 4, Article IX-C. Media firms continue to political parties, Section 6.2 of Republic Act (RA) 9006 and Section
operate under their franchises free of restrictions notwithstanding 9(a) of the Resolution lack any rational relation to the state policy of
the imposition of these airtime caps. Section 6.2 of RA 9006 and minimizing election spending under Section 2(7), Article IX-C of the
Section 9(a) of the Resolution do not approximate the rule barring Constitution.—Even if we subject Section 6.2 of RA 9006 and
media firms from “sell[ing] x x x print space or airtime for campaign Section 9(a) of the Resolution to the lowest level of scrutiny under
or other political purposes except to the Commission [on Elections],” the rational basis test, they still fail to withstand analysis. Rules
a clear statutory implementation of Section 4. On the other hand, survive this minimal level of scrutiny if the means drawn by
by regulating the length of broadcast advertising of candidates and Congress or administrative bodies are reasonably related to a
political parties, a propaganda activity with correlative financial legitimate state interest. The government interest Section 6.2 of RA
effect, Section 6.2 of RA 9006 and Section 9(a) of the Resolution 9006 and Section 9(a) of the Resolution are meant to advance is the
minimization of campaign spending. The means Congress and the
COMELEC adopted to do so was to place uniform campaign air caps country.—While the Court has acknowledged the Comelec’s wide
for national and local candidates, without taking into account the discretion in adopting means to carry out its mandate of ensuring
amount of money spent by candidates and political parties to air free, orderly, and honest elections, this discretion cannot be
campaign ads. By ignoring the amount of broadcasting expenses unlimited and must necessarily be within the bounds of the law
incurred by candidates and political parties, Section 6.2 of RA 9006 under the prevailing rule of law regime in our country. The legal
and Section 9(a) of the Resolution lack any rational relation to the limitations include those imposed by the fundamental law, among
state policy of minimizing election spending under Section 2(7), them, the right to due process where governmental action has
Article IX-C of the been substantively unreasonable or its procedures and
95 processes are unduly harsh. The Comelec’s failure to sufficiently
VOL. 734, SEPTEMBER 2, 2014 95 explain the basis for the change of
GMA Network, Inc. vs. Commission on Elections 96
Constitution. Their enforcement will only result in substantial 96 SUPREME COURT REPORTS ANNOTATED
variation in election spending among national and local candidates GMA Network, Inc. vs. Commission on Elections
for airing campaign ads. interpretation it decreed under Resolution No. 9615, in my
Same; Same; Same; Same; View that legislative measures view, falls within this limitation. Even without going into the
aimed at limiting campaign air time to advance the state policy of niceties and intricacies of legal reasoning, basic fairness demands
minimizing campaign spending under Section 2(7), Article IX-C of that the Comelec provides a reasonable justification, considering
the Constitution must necessarily be pegged to spending caps for particularly the Comelec’s own knowledge of the dynamics of
campaign broadcasting.—Legislative measures aimed at limiting campaign strategy and the influence of the radio and television as
campaign air time to advance the state policy of minimizing medium of communication.
campaign spending under Section 2(7), Article IX-C of the Same; Same; Same; View that the validity or invalidity of the
Constitution must necessarily be pegged to spending caps for assailed Commission on Elections (COMELEC) Resolution
campaign broadcasting. Such caps, in turn, will depend on the size essentially rises or falls on the Comelec’s compliance with the legal
of the voting population for each category of candidates (national or concept of due process or, at the very least, the common notion of
local), consistent with the existing method for capping general fairness.—Parenthetically, the need for prior notice and hearing
campaign spending under BP 881, as amended. The monetary limit actually supports the conclusion that the Comelec’s discretion is not
must be set at say P2.00 per registered voter for local candidates unbridled. Giving the petitioners prior opportunity to be heard
and P4.00 per registered voter for national candidates. Once the before adopting a new interpretation would have allowed the
total monetary limits are reached, the ban on broadcast advertising Comelec to make a reasonable evaluation of the merits and
takes effect, regardless of the amount of air time logged. This demerits of the 2004-2010 interpretation of airtime limits and the
scheme grants to candidates and political parties greater space for needs to satisfy the demands of the 2013 elections. In my
the exercise of communicative freedoms while, at the same time, discussions below, I shall supplement the ponencia’s observations
allows the state to uniformly flag profligate campaigns. (which cited the case Commissioner of Internal Revenue v. Court of
Brion, J., Separate Concurring Opinion: Appeals, 257 SCRA 200 [1996]), that prior notice and hearing are
Election Law; Political Ad Ban; Airtime Limits; View that required if an administrative issuance “substantially adds to or
while the Court has acknowledged the Commission on Elections’ increases the burden of those governed.” I do so based on my own
(COMELEC’s) wide discretion in adopting means to carry out its assessment that the validity or invalidity of the assailed
mandate of ensuring free, orderly, and honest elections, this Comelec Resolution essentially rises or falls on the
discretion cannot be unlimited and must necessarily be within the Comelec’s compliance with the legal concept of due process
bounds of the law under the prevailing rule of law regime in our or, at the very least, the common notion of fairness. In the
latter case, the prevailing circumstances and the interests at stake Same; Same; Same; Same; Due Process; View that the
have collectively given rise to the need to observe basic fairness. Commission on Elections’ (COMELEC’s) failure to notify and hear
Same; Same; Same; Commission on Elections; View that the all the concerned parties amounted to a due process violation
remedy against an improvident exercise of the Commission on amounting to grave abuse in the exercise of its discretion in
Elections’ (COMELEC’s) quasi-judicial power is provided under interpreting the laws and rules it implements.—While the
Article IX-A, Section 7, in relation with Article IX-C, Section 3 of the petitioners do not have any absolutely demandable right to notice
Constitution and with Rule 64 of the Rules of Court.—The quasi- and hearing in the Comelec’s promulgation of a legislative rule, the
judicial power of the Comelec embraces the power to resolve weight and seriousness of the considerations underlying the change
controversies arising from the enforcement of election laws, and to in implementing the airtime limit rule, required a more circumspect
be the sole judge of all pre-proclamation controversies; and of all and sensitive exercise of discretion by the Comelec, in fact, the duty
contests relating to the elections, returns, and qualifications. In the to be fair that opens the door to due process considerations. The
exercise of quasi-judicial power, the Comelec must necessarily change touched on very basic individual, societal and even
ascertain the constitutional values and considerations so that the Comelec’s
97 failure to notify and hear all the concerned parties amounted to a
VOL. 734, SEPTEMBER 2, 2014 97 due process violation amounting to grave abuse in the exercise of
GMA Network, Inc. vs. Commission on Elections its discretion in interpreting the laws and rules it implements.
existence of facts, hold hearings to secure or confirm these While the Comelec admittedly conducted a
facts, weigh the presented evidence, and draw conclusions from hearing after promulgating Comelec Resolution No. 9615, this
them as basis for its action and exercise of discretion that is belated remedy does not at all cure the resolution’s invalidity.
essentially judicial in character. When exercising this power, due 98
process requires that prior notice and hearing must be observed. 98 SUPREME COURT REPORTS ANNOTATED
The remedy against an improvident exercise of the Comelec’s quasi- GMA Network, Inc. vs. Commission on Elections
judicial power is provided under Article IX-A, Section 7, in relation
with Article IX-C, Section 3 of the Constitution and with Rule 64 of Same; Same; Same; Same; View that the Commission on
the Rules of Court. Elections (COMELEC) possesses wide latitude of discretion in
Same; Same; Same; Same; View that in the exercise of quasi- adopting means to carry out its mandate of ensuring free, orderly,
legislative power, administrative law distinguishes between an and honest elections, but subject to the limitation that the means so
administrative rule or regulation (legislative rule), on the one hand, adopted are not illegal or do not constitute grave abuse of
and an administrative interpretation of a law whose enforcement is discretion.—By holding that the Comelec must have reasonable
entrusted to an administrative body (interpretative rule), on the basis for changing their interpretation of the airtime limits under
other.—The Comelec’s quasi-legislative power, which it may RA No. 9006 and that, impliedly its absence in the present case
exercise hand in hand with its power to administer and enforce constitutes a violation of the petitioners’ right to due process,
election laws, refers to its power to issue rules and regulations to the ponenciain effect recognized the Comelec’s duty under the
implement these election laws. In the exercise of quasi-legislative circumstances to provide for a reasonable basis for its action, as well
power, administrative law distinguishes between an administrative as its competence to adequately explain them as the constitutional
rule or regulation (legislative rule), on the one hand, and an body tasked to enforce and administer all elections laws and
administrative interpretation of a law whose enforcement is regulations. This recognition is consistent with the Court’s similar
entrusted to an administrative body (interpretative rule), on the recognition that the Comelec possesses wide latitude of discretion
other. in adopting means to carry out its mandate of ensuring free,
orderly, and honest elections, but subject to the limitation that the
means so adopted are not illegal or do not constitute grave abuse of and fora among candidates.” After Congress enacted RA No. 9006,
discretion. Given this recognition and in light of the nullity of which by its terms textually support Comelec Resolution No. 9615,
Comelec Resolution No. 9615, the Court, for its part, should also it cannot be said that the resolution is not germane to the purpose
recognize that it should not preempt the Comelec from later on of the law or that it is inconsistent with the law itself.
establishing or attempting to establish the bases for a new Same; Same; Same; Commission on Elections; View that since
interpretation that is not precluded on other constitutional the Commission on Elections (COMELEC) is the body tasked by the
grounds. The Comelec possesses ample authority to so act under the Constitution with the enforcement and supervision of all election
provision that airtime limits, among others, “may be amplified on related laws with the power to supervise or regulate the enjoyment
by the Comelec.” of franchises or permits for the operation of media of communication
Same; Same; Same; View that the Supreme Court (SC) will not or information, Congress found the Comelec to be the competent body
or should not pass upon a constitutional question although properly to determine, within the limits provided by Congress, the more
presented by the record, if there is also present some other ground appropriate regulation in an ever changing political landscape.—
upon which the case may be disposed of.—I choose to part with Since the Comelec is the body tasked by the Constitution with the
the ponencia at this pointas I believe that with the due process enforcement and supervision of all election related laws with the
and fairness grounds firmly established, this Court should refrain power to supervise or regulate the enjoyment of franchises or
from touching on other constitutional grounds, particularly on a permits for the operation of media of communication or information,
matter as weighty as the one before us, unless we can adequately Congress found the Comelec to be the competent body to determine,
explain and support our dispositions. The oft-repeated dictum in within the limits provided by Congress, the more appropriate
constitutional decision-making is the exercise of judicial regulation in an ever changing political landscape. Reading RA
restraint. The Court will not or should not pass upon a No. 9006 and all the above considerations together, it is not
constitutional question although properly presented by the record, difficult to grasp that the 180 and 120 minute limitations
if there is also present some other ground upon which the case may for each candidate under the law should be understood as
be disposed of. This, to my mind, is the dictum most particularly fit the maximum statutory threshold for campaign
for the current legal situation before us, as I will explain below. advertisement. This is by the express provision of RA No.
99 9006. The Comelec’s on a “per station” interpretation
VOL. 734, SEPTEMBER 2, 2014 99 (effective from 2004 until 2010), on the other hand, may be
GMA Network, Inc. vs. Commission on Elections considered as another maximum limit for campaign
advertisement, based on the Comelec’s authority to
Same; Same; Same; View that after Congress enacted Republic “amplify.” This Comelec ruling, standing as presented, should be
Act (RA) No. 9006, which by its terms textually support Commission 100
on Elections (COMELEC) Resolution No. 9615, it cannot be said 100 SUPREME COURT REPORTS ANNOTATED
that the resolution is not germane to the purpose of the law or that GMA Network, Inc. vs. Commission on Elections
it is inconsistent with the law itself.—Pursuant to Section 4, Article valid for as long as it does not exceed the statutory ceiling on a
IX-C of the 1987 Constitution, Congress enacted RA No. 9006 and per station basis.
declared as a matter of state principle that during the election Same; Same; Same; Freedom of Speech and of the Press; View
period the State may supervise and regulate “the enjoyment or that while freedom of speech is indeed a constitutionally protected
utilization of all franchises or permits for the operation of media of right, the ponencia failed to consider that the Constitution itself
communication or information.” The avowed purpose is to expressly provides for a limitation to the enjoyment of this right
“guarantee or ensure equal opportunity for public service, including during the election period.—The ponencia also claims that Comelec
access to media time and space for public information campaigns Resolution No. 9615 violates the candidates’ freedom of speech
because it restricts their ability to reach out to a larger audience. which the ponencia found pertinent to quote, to be simply
While freedom of speech is indeed a constitutionally protected right, inapplicable.
the ponencia failed to consider that the Constitution itself Same; Same; Same; Commission on Elections; View that in
expressly provides for a limitation to the enjoyment of this enacting Republic Act (RA) No. 9006, Congress has allowed the
right during the election period. Article IX-C, Section 4 of the Commission on Elections (COMELEC) considerable latitude in
Constitution reads: Section 4. The Commission may, during the determining, within statutory limits, whether a strict or liberal
election period, supervise or regulate the enjoyment or utilization application of the airtime limits in a particular election period is
of all franchises or permits for the operation of transportation and more appropriate.—In enacting RA No. 9006, Congress has allowed
other public utilities, media of communication or information, all the Comelec considerable latitude in determining, within statutory
grants, special privileges, or concessions granted by the limits, whether a strict or liberal application of the airtime limits in
Government or any subdivision, agency, or instrumentality thereof, a particular election period is more appropriate. Unless the
including any government-owned or -controlled corporation or its Comelec has no reasonable basis and adequate explanation for its
subsidiary. Such supervision or regulation shall aim to ensure action and unless the parties directly affected are not given
equal opportunity, time, and space, and the right to reply, including opportunity to be heard on this action — as in the present case —
reasonable, equal rates therefor, for public information campaigns the Court should withhold the exercise of its reviewing power.
and forums among candidates in connection with the objective of Leonen, J., Concurring Opinion:
holding free, orderly, honest, peaceful, and credible elections. Constitutional Law; Prior Restraint; Freedom of Speech and of
Same; Same; Same; Same; View that contrary to the ponencia’s the Press; Words and Phrases; View that prior restraint is defined
very broad statements, the press is not in any way “silenced” or as the “official governmental restrictions on the press or other forms
“muffled under Commission on Elections (COMELEC) Resolution of expression in advance of actual publication or dissemination.”—
No. 9615”; what the resolution affects is merely the duration of Prior restraint is defined as the “official governmental restrictions
allowable of radio and television advertisements by the candidates on the press or other forms of expression in advance of actual
and registered political parties.—It may be argued that while the publication or dissemination.” Prior restraints of speech are
quantity of campaign advertisements is reduced, this reduction generally presumptively unconstitutional. The only instances when
inversely and proportionately increases the radio and this is not the case are in pornography, false and misleading
television stations’ own time — the freedom of the press at advertisement, advocacy of imminent lawless action, and danger to
its very basic— to actively perform their duty to assist in the national security. Section 6 of the Fair Election Act is a form of prior
functions of public information and education. Thus, contrary to restraint. While it does not totally prohibit speech, it has the effect
the ponencia’s very broad statements, the press is not in any way of limitations in terms of the candidates’ and political parties’
“silenced” or “muffled under Comelec Resolution No. 9615”; what desired time duration and frequency. When an act of government is
the resolution affects is merely the duration of allowable of radio in prior restraint of speech, government carries a heavy burden of
and television advertisements by unconstitutionality. In Iglesia ni Cristo v. Court of Appeals, 259
101 SCRA 529 (1996), this court said that “any act that restrains speech
VOL. 734, SEPTEMBER 2, 2014 101 is hobbled by the presumption of invalidity and should be greeted
GMA Network, Inc. vs. Commission on Elections with furrowed brows.” This is the
the candidates and registered political parties. In the same 102
manner, under Comelec Resolution No. 9615, the radio and 102 SUPREME COURT REPORTS ANNOTATED
television networks themselves are not hindered in pursuing their GMA Network, Inc. vs. Commission on Elections
respective public information campaigns and other election-related only situation where we veer away from our presumption of
public service activity. I incidentally find the Pentagon Papers case, constitutionality.
Same; Same; Same; Election Law; Fair Election Act (Republic GMA Network, Inc. vs. Commission on Elections
Act [RA] No. 9006); View that it is recognized that Section 6 of the
Fair Election Act does not completely prohibit speech. However, the Same; Same; Same; Same; Commission on Elections; View that
provision effectively limits speech in terms of time duration and not only must the Commission on Elections (COMELEC) have the
frequency.—It is recognized that Section 6 of the Fair Election Act competence, it must also be cognizant of our doctrines in relation to
does not completely prohibit speech. However, the provision any kind of prior restraint.—While the Commission on Elections
effectively limits speech in terms of time duration and frequency. does have the competence to interpret Section 6, it must do so
Admittedly, the present wording of Section 6 of the Fair Election without running afoul of the fundamental rights enshrined in our
Act does not clearly imply whether the one hundred twenty (120) Constitution, especially of the guarantee of freedom of expression
minutes of television advertisement and the one hundred eighty and the right to suffrage. Not only must the Commission on
(180) minutes of radio advertisement allotted to each candidate or Elections have the competence, it must also be cognizant of our
registered political party is for each network or is an aggregate time doctrines in relation to any kind of prior restraint.
for all such advertisements, whether paid or donated, during the Same; Same; Same; Same; View that ideally, television and
entire election period. However, during the 2007 and the 2010 radio stations should bid and compete for a candidate’s or a political
elections, the Commission on Elections allowed candidates and party’s airtime allocation, so that instead of networks dictating
registered political parties to advertise as much as 120 minutes of artificially high prices for airtime (which price will be high as
television advertisement and 180 minutes of radio advertisement television and radio stations are profit-driven), the market will
per station. determine for itself the price.—Ideally, television and radio stations
Same; Same; Same; Same; Airtime Limits; View that it is should bid and compete for a candidate’s or a political party’s
within the legislature’s domain to determine the amount of airtime allocation, so that instead of networks dictating artificially
advertising sufficient to balance the need to provide information to high prices for airtime (which price will be high as television and
voters and educate the public on the one hand, and to cause the radio stations are profit-driven), the market will determine for itself
setting of an affordable price to most candidates that would reduce the price. The market for airtime allocation expands, and a buyer’s
their expenditures on the other.—Whether the airtime in television market emerges with low prices for airtime allocation. This
and radio spots of candidates and registered political parties may situation assumes that in the market for airtime allocation,
be regulated is not an issue in this case. Indeed, the Constitution television and radio networks are the same in terms of audience
clearly allows this for purposes of providing equal opportunity to all coverage and facilities.
candidates. The issue is also not whether Congress, in Same; Same; Same; Same; View that limiting airtime to only a
promulgating Section 6 of the Fair Election Act, committed grave total of 120/180 minutes per candidate or political party will most
abuse of discretion in determining a cap of 120 minutes advertising likely only succeed in caricaturing debate, enriching only the more
for television and 180 minutes for radio. It is within the legislature’s powerful companies in the media sector and making it more
domain to determine the amount of advertising sufficient to balance prohibitive for less powerful candidates to get their messages
the need to provide information to voters and educate the public on across.—Each candidate decides what media they will avail to allow
the one hand, and to cause the setting of an affordable price to most for efficiency, i.e., the most impact with the broadest audience and
candidates that would reduce their expenditures on the other. We with the least cost. All candidate’s limits will be the same. Limiting
are not asked to decide in these cases whether these actual time airtime to only a total of 120/180 minutes per candidate or political
limitations hurdle the heavy burden of unconstitutionality that party will most likely only succeed in caricaturing debate, enriching
attends to any prior limitations on speech. only the more powerful companies in the media sector and making
103 it more prohibitive for less powerful candidates to get their
VOL. 734, SEPTEMBER 2, 2014 103 messages across.
104 The facts are stated in the opinion of the Court.
104 SUPREME COURT REPORTS ANNOTATED 105
GMA Network, Inc. vs. Commission on Elections VOL. 734, SEPTEMBER 2, 2014 105
GMA Network, Inc. vs. Commission on Elections
Same; Same; Same; Same; View that where a governmental act
has the effect of preventing speech before it is uttered, it is the burden Belo, Gozon, Elma, Parel, Asuncion & Lucila for petitioner
of government and not of the speaker to justify the restriction in GMA Network, Inc.
terms which are clear to the Supreme Court (SC).—We emphasize
Angara, Abello, Concepcion, Regala & Cruz for petitioner
that where a governmental act has the effect of preventing speech
before it is uttered, it is the burden of government and not of the
ABC Development Corporation.
speaker to justify the restriction in terms which are clear to this Migallos & Luna Law Offices for petitioners Manila
court. Article III, Section 4 of the Constitution which provides for Broadcasting Company, Inc., Newsounds Broadcasting
freedom of expression occupies such high levels of protection that Network, Inc. and Radio Mindanao Network, Inc.
its further restriction cannot be left to mere speculation. Poblador, Bautista & Reyes for petitioner ABS-CBN
Same; Same; Same; Same; View that the Supreme Court (SC) Corporation.
will step in and review the Commission on Elections’ right to amplify Villamor and Sana Law Firm for petitioner Kapisanan ng
if it infringes on people’s fundamental rights.—Contrary to mga Brodkaster ng Pilipinas (KBP).
COMELEC Chairman Brillantes’ statement, this court will step in George Erwin M. Garcia for petitioner-intervenor Senator
and review the Commission on Elections’ right to amplify if it Alan Peter “Compañero” S. Cayetano.
infringes on people’s fundamental rights. What the Commission
PERALTA, J.:
“feels,” even if it has the prerogative, will never be enough to
discharge its burden of proving the constitutionality of its “The clash of rights demands a delicate balancing of
regulations limiting the freedom of speech. interests approach which is a ‘fundamental postulate of
Same; Same; Same; Same; Commission on Elections; View that constitutional law.’”1
the Commission on Elections (COMELEC) does not have a monopoly
of the desire for genuine electoral reform without compromising Once again the Court is asked to draw a carefully drawn
fundamental rights.—The standard of analysis for prior restraints balance in the incessant conflicts between rights and
on speech is well-known to all legal practitioners especially to those regulations, liberties and limitations, and competing demands
that may have crafted the new regulations. Good intentions are of the different segments of society. Here, we are confronted
welcome but may not be enough if the effect would be to compromise with the need to strike a workable and viable equilibrium
our fundamental freedoms. It is this court’s duty to perform the between a constitutional mandate to maintain free, orderly,
roles delegated to it by the sovereign people. In a proper case
honest, peaceful and credible elections, together with the aim
invoking this court’s powers of judicial review, it should sometimes
result in more mature reflection by those who do not benefit from
of ensuring equal opportunity, time and space, and the right
its decisions. The Commission on Elections does not have a to reply, including reasonable, equal rates therefor, for public
_______________
monopoly of the desire for genuine electoral reform without
compromising fundamental rights. Our people cannot be cast as 1 Secretary of Justice v. Lantion, 397 Phil. 423, 437; 343 SCRA 377, 390
their epigones. (2000). (Citation omitted)
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari 106
and Prohibition. 106 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections GMA Network, Inc. vs. Commission on Elections
information campaigns and forums among candidates,2 on one viable and acceptable balance between liberty, without
hand, and the imperatives of a republican and democratic which, government becomes an unbearable tyrant, and
state,3 together with its guaranteed rights of authority, without which, society becomes an
suffrage,4 freedom of speech and of the press,5 and the people’s intolerable and dangerous arrangement?
right to information,6 on the other. Assailed in these petitions are certain regulations
In a nutshell, the present petitions may be seen as in search promulgated by the Commission on Elections (COMELEC)
of the answer to the question — how does the Charter of a relative to the conduct of the 2013 national and local elections
republican and democratic State achieve a dealing with political advertisements. Specifically, the
_______________ petitions question the constitutionality of the limitations
placed on aggregate airtime allowed to candidates and
2 Art. IX(C), Sec. 4 of the Constitution, provides:
The Commission may, during the election period, supervise or regulate the political parties, as well as the requirements incident thereto,
enjoyment or utilization of all franchises or permits for the operation of such as the need to report the same, and the sanctions
transportation and other public utilities, media of communication or imposed for violations.
information, all grants, special privileges, or concessions granted by the
The five (5) petitions before the Court put in issue the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or -controlled corporation or its subsidiary. Such alleged unconstitutionality of Section 9(a) of COMELEC
supervision or regulation shall aim to ensure equal opportunity, time and Resolution No. 9615 (Resolution) limiting the broadcast and
space, and the right to reply, including reasonable, equal rates therefor, for radio advertisements of candidates and political parties for
public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible
national election positions to an aggregate total of one
elections. hundred twenty (120) minutes and one hundred eighty (180)
3 The Philippines is a democratic and republican State. Sovereignty minutes, respectively. They contend that such restrictive
resides in the people and all government authority emanates from them. (Art. regulation on allowable broadcast time violates freedom of the
II, Sec. 1, Constitution)
4 Suffrage may be exercised by all citizens of the Philippines not otherwise
press, impairs the people’s right to suffrage as well as their
disqualified by law, who are at least eighteen years of age, and who shall have right to information relative to the exercise of their right to
resided in the Philippines for at least one year and in the place wherein they choose who to elect during the forthcoming elections.
propose to vote for at least six months immediately preceding the election. No The heart of the controversy revolves upon the proper
literacy, property, or other substantive requirement shall be imposed on the
exercise of suffrage. (Art. V, Sec. 1, Constitution) interpretation of the limitation on the number of minutes that
5 No law shall be passed abridging the freedom of speech, of expression, candidates may use for television and radio advertisements,
or of the press, or the right of the people peaceably to assemble and petition as provided in Section 6 of Republic Act No. 9006 (R.A. No.
the Government for redress of grievances. (Art. III, Sec. 4, Constitution)
9006), otherwise known as the Fair Election Act. Pertinent
6 The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents and papers portions of said provision state, thus:
pertaining to official acts, transactions, or decisions, as well as to government Sec. 6. Equal Access to Media Time and Space.—All registered
research data used as basis for policy development, shall be afforded the parties and bona fide candidates shall have equal access to media
citizen, subject to such limitations as may be provided by law. (Art. III, Sec. 7, time and space. The following guidelines may be amplified on by
Constitution) the COMELEC:
107
xxxx
VOL. 734, SEPTEMBER 2, 2014 107 108
108 SUPREME COURT REPORTS ANNOTATED Mindanao Network, Inc. (RMN) are owners/operators of radio
GMA Network, Inc. vs. Commission on Elections and television networks in the Philippines, while petitioner
Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the
6.2 (a) Each bona fide candidate or registered political party national organization of broadcasting companies in the
for a nationally elective office shall be entitled to not more than one Philippines representing operators of radio and television
hundred twenty (120) minutes of television advertisement and one stations and said stations themselves. They sent their
hundred eighty (180) minutes of radio advertisement whether by respective letters to the COMELEC questioning the
purchase or donation. provisions of the aforementioned Resolution, thus, the
(b) Each bona fide candidate or registered political party for a
COMELEC held public hearings. Thereafter, on February 1,
locally elective office shall be entitled to not more than sixty (60)
2013, respondent issued Resolution No. 9631 amending
minutes of television advertisement and ninety (90) minutes of
radio advertisement whether by purchase or donation. provisions of Resolution No. 9615. Nevertheless, petitioners
For this purpose, the COMELEC shall require any broadcast still found the provisions objectionable and oppressive, hence,
station or entity to submit to the COMELEC a copy of its broadcast the present petitions.
logs and certificates of performance for the review and verification All of the petitioners assail the following provisions of the
of the frequency, date, time and duration of advertisements Resolution:
broadcast for any candidate or political party. a) Section 7(d),8 which provides for a penalty of
During the previous elections of May 14, 2007 and May 10, suspension or revocation of an offender’s franchise or permit,
2010, COMELEC issued Resolutions implementing and imposes criminal liability against broadcasting entities and
interpreting Section 6 of R.A. No. 9006, regarding airtime their officers in the event they sell airtime in excess of the size,
limitations, to mean that a candidate is entitled to the duration, or frequency authorized in the new rules;
aforestated number of minutes “per station.”7 For the May _______________
2013 elections, however, respondent COMELEC promulgated
8 SECTION 7. Prohibited Forms of Election Propaganda.—
Resolution No. 9615 dated January 15, 2013, changing the xxxx
interpretation of said candidates’ and political parties’ airtime (d) For any newspaper or publication, radio, television or cable television
limitation for political campaigns or advertisements from a station, or other mass media, or any person making use of the mass media to
“per station” basis, to a “total aggregate” basis. sell or give free of charge print space or airtime for campaign or election
propaganda purposes to any candidate or party in excess of the size, duration
Petitioners ABS-CBN Corporation (ABS-CBN), ABC or frequency authorized by law or these rules.
Development Corporation (ABC), GMA Network, xxxx
Incorporated The printing press, printer, or publisher who prints, reproduces or
_______________ publishes said campaign materials, and the broadcaster, station manager,
owner of the radio or television station, or owner or administrator of any
7 Resolution No. 7767 (promulgated on November 30, 2006) and website who airs or shows the political advertisements, without the required
Resolution No. 8758 (promulgated on February 4, 2010), respectively. data or in violation of these rules shall be criminally liable with the candidate
109 and, if applicable, further suffer the penalties of suspension or revocation of
franchise or permit in accordance with law.
VOL. 734, SEPTEMBER 2, 2014 109 110
GMA Network, Inc. vs. Commission on Elections 110 SUPREME COURT REPORTS ANNOTATED
(GMA), Manila Broadcasting Company, Inc. (MBC), New- GMA Network, Inc. vs. Commission on Elections
sounds Broadcasting Network, Inc. (NBN), and Radio
111
b) Section 9(a),9 which provides for an “aggregate total” VOL. 734, SEPTEMBER 2, 2014 111
airtime instead of the previous “per station” airtime for politi- GMA Network, Inc. vs. Commission on Elections
_______________
cal campaigns or advertisements, and also required prior
9 SECTION 9. Requirements and/or Limitations on the Use of Election
Propaganda through Mass Media.—All parties and bona fide candidates shall COMELEC approval for candidates’ television and radio
have equal access to media time and space for their election propaganda guestings and appearances; and
during the campaign period subject to the following requirements and/or c) Section 14,10 which provides for a candidate’s “right to
limitations:
reply.”
a. Broadcast Election Propaganda
_______________
the duration of air time that a candidate, or party may use for their
broadcast advertisements or election propaganda shall be, as follows:
be broadcast election propaganda within the meaning of this provision. To
For Candidates/
determine whether the appearance or guesting in a program is bona fide, the
Registered Political
broadcast stations or entities must show that: (1) prior approval of the
parties for a
Commission was secured; and (2) candidates and parties were afforded equal
National
opportunities to promote their candidacy. Nothing in the foregoing sentence
Elective Position
shall be construed as relieving broadcasters, in connection with the
Not more than an aggregate total of one hundred (120) minutes of
presentation of newscasts, news interviews, news documentaries, and on-the-
television advertising, whether appearing on national, regional, or local, free
spot coverage of news events, from the obligation imposed upon them under
or cable television, and one hundred eighty (180) minutes of radio advertising,
Sections 10 and 14 of these Rules.
whether airing on national, regional, or local radio, whether by purchase or
Provided, further, that a copy of the broadcast advertisement contract be
donation.
furnish to the Commission, thru the Education and Information Department,
For Candidates/
within five (5) days from contract signing.
Registered Political
xxxx
parties for a Local
10 SECTION 14. Right to Reply.—All registered political parties, party-
Elective Position
list groups or coalitions and bona fide candidates shall have the right to reply
Not more than an aggregate total of sixty (60) minutes of television
to charges published, or aired against them. The reply shall be given publicity,
advertising, whether appearing on national, regional, or local, free or cable
or aired against them. The reply shall be given publicity by the newspaper,
television, and ninety (90) minutes of radio advertising, whether airing on
television, and/or radio station which first printed or aired the charges with
national, regional, or local radio, whether by purchase or donation.
the same prominence or in the same page or section or in the same time slot
In cases where two or more candidates or parties whose names, initials,
as the first statement.
images, brands, logos, insignias, color motifs, symbols, or forms of graphical
Registered political parties, party-list groups or coalitions and bona
representations are displayed, exhibited, used, or mentioned together in the
fide candidates may invoke the right to reply by submitting within a non-
broadcast election propaganda or advertisements, the length of time during
extendible period of forty-eight (48) hours from first broadcast or publications,
which they appear or are being mentioned or promoted will be counted against
a formal verified claim against the media outlet to the COMELEC through the
the airtime limits allotted for the said candidates or parties and the cost of the
appropriate RED. The claim shall include a detailed enumeration of the
said advertisement will likewise be considered as their expenditures,
circumstances and include a detailed enumeration of the circumstances and
regardless of whoever paid for the advertisements or to whom the said
occurrences which warrant the invocation of the right to reply and must be
advertisements were donated.
accompanied by supporting evidence, such as copy of the publication or
Appearance or guesting by a candidate on any bona fide newscast, bona
recording of the television or radio broadcast, as the case may be. If the
fide news interview, bona fide news documentary, if the appearance of the
supporting evidence is not yet available due to circumstances beyond the
candidate is incidental to the presentation of the subject or subjects covered
power of the claimant, the latter shall supplement his claim as soon as the
by the news documentary, or on-the-spot coverage of bona fide news events,
supporting evidence becomes available, without delay on the part of the
including but not limited to events sanctioned by the Commission on Elections,
claimant. The claimant must likewise furnish a copy of the verified claim and
political conventions, and similar activities, shall not be deemed to
its attachments to the media out let concerned prior to the filing of the claim limited to, social networks, blogging sites, and micro-blogging sites, in return
with the COMELEC. for consideration, or otherwise capable of pecuniary estimation.
12 SECTION 35. Election Offense.—Any violation of RA 9006 and these
112 Rules shall constitute an election offense punishable under the first and
112 SUPREME COURT REPORTS ANNOTATED second paragraph of Section 264 of the Omnibus Election Code in addition to
administrative liability, whenever applicable. Any aggrieved party may file a
GMA Network, Inc. vs. Commission on Elections verified complaint for violation of these Rules with the Law Department of the
Commission.
In addition, petitioner ABC also questions Section 113
1(4)11 thereof, which defines the term “political VOL. 734, SEPTEMBER 2, 2014 113
advertisement” or “election propaganda,” while petitioner GMA Network, Inc. vs. Commission on Elections
GMA further assails Section 35,12which states that any File and Admit the Petition-in-Intervention, which was
violation of said Rules shall constitute an election offense. granted by the Court per its Resolution dated March 19, 2013.
On March 15, 2013, Senator Alan Peter S. Cayetano Petitioner-Intervenor also assails Section 9(a) of the
(Petitioner-Intervenor) filed a Motion for Leave to Intervene Resolution changing the interpretation of candidates’ and
and to political parties’ airtime limitation for political campaigns or
_______________ advertisements from a “per station” basis, to a “total
aggregate” basis.
The COMELEC, through the RED, shall review the verified claim within
forty-eight (48) hours from receipt thereof, including supporting evidence, and Petitioners allege that Resolutions No. 9615 and 9631,
if circumstances warrant, give notice to the media outlet involved for amending the earlier Resolution, are unconstitutional and
appropriate action, which shall, within forty-eight (48) hours, submit its issued without jurisdiction or with grave abuse of discretion
comment, answer or response to the RED, explaining the action it has taken
amounting to lack or excess of jurisdiction, for the reasons set
to address the claim. The media outlets must likewise furnish a copy invoking
the right to reply. forth hereunder.
Should the claimant insist that his/her reply was not addressed, he/she Petitioners posit that Section 9(a) of the assailed
may file the appropriate petition and/or complaint before the commission on Resolution provides for a very restrictive aggregate airtime
Elections or its field offices, which shall be endorsed to the Clerk of the
limit and a vague meaning for a proper computation of
Commission.
11 SECTION 1. Definitions.—As used in this Resolution: “aggregate total” airtime, and violates the equal protection
xxxx guarantee, thereby defeating the intent and purpose of R.A.
(4) The term “political advertisement” or “election propaganda” refers to No. 9006.
any matter broadcasted, published, printed, displayed or exhibited, in any
medium, which contain the name, image, logo, brand, insignia, color motif,
Petitioners contend that Section 9(a), which imposes a
initials, and other symbol or graphic representation that is capable of being notice requirement, is vague and infringes on the
associated with a candidate or party, and is intended to draw the attention of constitutionally protected freedom of speech, of the press and
the public or a segment thereof to promote or oppose, directly or indirectly, the of expression, and on the right of people to be informed on
election of the said candidate or candidates to a public office. In broadcast
media, political advertisements may take the form of spots, appearances on
matters of public concern
TV shows and radio programs, live or taped announcements, teasers, and Also, Section 9(a) is a cruel and oppressive regulation as it
other forms of advertising messages or announcements used by commercial imposes an unreasonable and almost impossible burden on
advertisers. broadcast mass media of monitoring a candidate’s or political
Political advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website, including, but not party’s aggregate airtime, otherwise, it may incur
administrative and criminal liability.
Further, petitioners claim that Section 7(d) is null and void media outlets. It argues that petitioners’ alleged risk of
for unlawfully criminalizing acts not prohibited and penalized exposure to criminal liability is insufficient to give them legal
as criminal offenses by R.A. No. 9006. standing as said “fear of injury” is highly speculative and
Section 14 of Resolution No. 9615, providing for a contingent on a future act.
candidate’s or political party’s “right to reply,” is likewise Respondent then parries petitioners’ attack on the alleged
assailed to be unconstitutional for being an improper exercise infirmities of the Resolution’s provisions.
of the COMELEC’s regulatory powers; for constituting prior Respondent maintains that the per candidate rule or total
restraint and infringing petitioners’ freedom of expression, aggregate airtime limit is in accordance with R.A. No. 9006 as
speech and the press; and for being violative of the equal this would truly give life to the constitutional objective to
protection guarantee. equalize access to media during elections. It sees this as a
114 more effective way of levelling the playing field between can-
114 SUPREME COURT REPORTS ANNOTATED _______________
GMA Network, Inc. vs. Commission on Elections
13 Rollo (G.R. No. 205357), pp. 382-426.
115
In addition to the foregoing, petitioner GMA further argues VOL. 734, SEPTEMBER 2, 2014 115
that the Resolution was promulgated without public GMA Network, Inc. vs. Commission on Elections
consultations, in violation of petitioners’ right to due process. didates/political parties with enormous resources and those
Petitioner ABC also avers that the Resolution’s definition of without much. Moreover, the COMELEC’s issuance of the
the terms “political advertisement” and “election propaganda” assailed Resolution is pursuant to Section 4, Article IX(C) of
suffers from overbreadth, thereby producing a “chilling the Constitution which vests on the COMELEC the power to
effect,” constituting prior restraint. supervise and regulate, during election periods,
On the other hand, respondent posits in its Comment and transportation and other public utilities, as well as mass
Opposition13 dated March 8, 2013, that the petition should be media, to wit:
denied based on the following reasons: Sec. 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all franchises
Respondent contends that the remedies of certiorari and or permits for the operation of transportation and other public
prohibition are not available to petitioners, because the writ utilities, media of communication or information, all grants, special
of certiorari is only available against the COMELEC’s privileges, or concessions granted by the Government or any
adjudicatory or quasi-judicial powers, while the writ of subdivision, agency, or instrumentality thereof, including any
prohibition only lies against the exercise of judicial, quasi- government-owned or -controlled corporation or its subsidiary.
judicial or ministerial functions. Said writs do not lie against Such supervision or regulation shall aim to ensure equal
the COMELEC’s administrative or rule-making powers. opportunity, and equal rates therefor, for public information
campaigns and forums among candidates in connection with the
Respondent likewise alleges that petitioners do not
objective of holding free, orderly, honest, peaceful, and credible
have locus standi, as the constitutional rights and freedoms
elections.
they enumerate are not personal to them, rather, they belong This being the case, then the Resolutions cannot be said to
to candidates, political parties and the Filipino electorate in have been issued with grave abuse of discretion amounting to
general, as the limitations are imposed on candidates, not on lack of jurisdiction.
Next, respondent claims that the provisions are not vague to reply is enshrined in the Constitution, and the assailed
because the assailed Resolutions have given clear and Resolutions provide that said right can only be had after going
adequate mechanisms to protect broadcast stations from through administrative due process. The provision was also
potential liability arising from a candidate’s or party’s merely lifted from Section 10 of R.A. No. 9006, hence,
violation of airtime limits by putting in the proviso that the petitioner ABC is actually attacking the constitutionality of
station “may require buyer to warrant under oath that such R.A. No. 9006, which cannot be done through a collateral
purchase [of airtime] is not in excess of size, duration or attack.
frequency authorized by law or these rules.” Furthermore, Next, respondent counters that there is no merit to ABC’s
words should be understood in the sense that they have in claim that the Resolutions’ definition of “political
common usage, and should be given their ordinary meaning. advertisement” or “election propaganda” suffers from
Thus, in the provision for the right to reply, “charges” against overbreadth, as the extent or scope of what falls under said
candidates or parties must be understood in the ordinary terms is clearly stated in Section 1(4) of Resolution No. 9615.
sense, referring to accusations or criticisms. It is also respondent’s view that the nationwide aggregate
116 total airtime does not violate the equal protection clause,
116 SUPREME COURT REPORTS ANNOTATED because it does not make any substantial distinctions between
GMA Network, Inc. vs. Commission on Elections national and regional and/or local broadcast stations, and
even without the aggregate total airtime rule, candidates and
Respondent also sees no prior restraint in the provisions 117
requiring notice to the COMELEC for appearances or VOL. 734, SEPTEMBER 2, 2014 117
guestings of candidates in bona fide news broadcasts. It GMA Network, Inc. vs. Commission on Elections
points out that the fact that notice may be given 24 hours after parties are likely to be more inclined to advertise in national
first broadcast only proves that the mechanism is for broadcast stations.
monitoring purposes only, not for censorship. Further, Respondent likewise sees no merit in petitioners’ claim
respondent argues, that for there to be prior restraint, official that the Resolutions amount to taking of private property
governmental restrictions on the press or other forms of without just compensation. Respondent emphasizes that
expression must be done in advance of actual publication or radio and television broadcasting companies do not own the
dissemination. Moreover, petitioners are only required to airwaves and frequencies through which they transmit
inform the COMELEC of candidates’/parties’ guestings, but broadcast signals; they are merely given the temporary
there is no regulation as to the content of the news or the privilege to use the same. Since they are merely enjoying a
expressions in news interviews or news documentaries. privilege, the same may be reasonably burdened with some
Respondent then emphasized that the Supreme Court has form of public service, in this case, to provide candidates with
held that freedom of speech and the press may be limited in the opportunity to reply to charges aired against them.
light of the duty of the COMELEC to ensure equal access to Lastly, respondent contends that the public consultation
opportunities for public service. requirement does not apply to constitutional commissions
With regard to the right to reply provision, respondent also such as the COMELEC, pursuant to Section 1, Chapter I,
does not consider it as restrictive of the airing of bona Book VII of the Administrative Code of 1987. Indeed, Section
fide news broadcasts. More importantly, it stressed, the right 9, Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation.—(1) If not otherwise required regulation. Such a petition does not nullify the assailed
by law, an agency shall, as far as practicable, publish or circulate statute or regulation, or grant injunctive relief, which
notices of proposed rules and afford interested parties the petitioners are praying for in their petition. Thus, GMA
opportunity to submit their views prior to the adoption of any rule. maintains that a petition for certiorari is the proper remedy.
However, Section 1, Chapter 1, Book VII of said Code GMA further denies that it is making a collateral attack on
clearly provides: the Fair Election Act, as it is not attacking said law. GMA
Section 1. Scope.—This Book shall be applicable to all
points out that it has stated in its petition that the law in fact
agencies as defined in the next succeeding section, except the
allows the sale or donation of airtime for political
Congress, the Judiciary, the Constitutional Commissions, military
establishments in all matters relating exclusively to Armed Forces advertisements and does not impose criminal liability against
personnel, the Board of Pardons and Parole, and state universities radio and television stations. What it is assailing is the
and colleges. COME-
_______________
Nevertheless, even if public participation is not required,
respondent still conducted a meeting with representatives of 14 Id., at pp. 667-710.
118 119
118 SUPREME COURT REPORTS ANNOTATED VOL. 734, SEPTEMBER 2, 2014 119
GMA Network, Inc. vs. Commission on Elections GMA Network, Inc. vs. Commission on Elections
the KBP and various media outfits on December 26, 2012, LEC’s erroneous interpretation of the law’s provisions by
almost a month before the issuance of Resolution No. 9615. declaring such sale and/or donation of airtime unlawful,
On April 2, 2013, petitioner GMA filed its Reply,14 where it which is contrary to the purpose of the Fair Election Act.
advanced the following counter-arguments: GMA then claims that it has legal standing to bring the
According to GMA, a petition for certiorari is the proper present suit because:
remedy to question the herein assailed Resolutions, which x x x First, it has personally suffered a threatened injury in the
should be considered as a “decision, order or ruling of the form of risk of criminal liability because of the alleged
Commission” as mentioned in Section 1, Rule 37 of the unconstitutional and unlawful conduct of respondent COMELEC in
COMELEC Rules of Procedure which provides: expanding what was provided for in R.A. No. 9006. Second, the
Section 1. Petition for Certiorari; and Time to File.—Unless injury is traceable to the challenged action of respondent
otherwise provided by law, or by any specific provisions in these COMELEC, that is, the issuance of the assailed Resolutions. Third,
Rules, any decision, order or ruling of the Commission may be the injury is likely to be redressed by the remedy sought in
brought to the Supreme Court on certiorari by the aggrieved party petitioner GMA’s Petition, among others, for the Honorable Court
within thirty (30) days from its promulgation. to nullify the challenged pertinent provisions of the assailed
GMA further stressed that this case involves national Resolutions.15
interest, and the urgency of the matter justifies its resort to On substantive issues, GMA first argues that the
the remedy of a petition for certiorari. questioned Resolutions are contrary to the objective and
Therefore, GMA disagrees with the COMELEC’s position purpose of the Fair Election Act. It points out that the Fair
that the proper remedy is a petition for declaratory relief Election Act even repealed the political ad ban found in the
because such action only asks the court to make a proper earlier law, R.A. No. 6646. The Fair Election Act also speaks
interpretation of the rights of parties under a statute or of “equal opportunity” and “equal access,” but said law never
mentioned equalizing the economic station of the rich and the effect of prior restraint”16 as even a legitimate exercise of a
poor, as a declared policy. Furthermore, in its opinion, the constitutional right might expose it to legal sanction. Thus,
supposed correlation between candidates’ expenditures for TV the governmental interest of leveling the playing field
ads and actually winning the elections, is a mere illusion, as between rich and poor candidates cannot justify the
there are other various factors responsible for a candidate’s restriction on the freedoms of expression, speech and of the
winning the election. GMA then cites portions of the press.
deliberations of the Bicameral Conference Committee on the
bills that led to the enactment of the Fair Election Act, and On the issue of lack of prior public participation, GMA cites
alleges that this shows the legislative intent that airtime Section 82 of the Omnibus Election Code, pertinent portions
allocation should be on a “per station” basis. Thus, GMA of which provide, thus:
claims it was arbitrary and a grave abuse of discretion for the Section 82. Lawful election propaganda.—Lawful election
COMELEC propaganda shall include:
_______________ xxxx
All other forms of election propaganda not prohibited by this
15 Id., at p. 676. Code as the Commission may
120 _______________
120 SUPREME COURT REPORTS ANNOTATED
16 Id., at p. 699.
GMA Network, Inc. vs. Commission on Elections 121
to issue the present Resolutions imposing airtime limitations VOL. 734, SEPTEMBER 2, 2014 121
on an “aggregate total” basis. GMA Network, Inc. vs. Commission on Elections
It is likewise insisted by GMA that the assailed Resolutions authorize after due notice to all interested parties and hearing
impose an unconstitutional burden on them, because their where all the interested parties were given an equal opportunity to
failure to strictly monitor the duration of total airtime that be heard: Provided, That the Commission’s authorization shall be
each candidate has purchased even from other stations would published in two newspapers of general circulation throughout the
expose their officials to criminal liability and risk losing the nation for at least twice within one week after the authorization has
station’s good reputation and goodwill, as well as its franchise. been granted.
It argues that the wordings of the Resolutions belie the There having been no prior public consultation held, GMA
COMELEC’s claim that petitioners would only incur liability contends that the COMELEC is guilty of depriving petitioners
if they “knowingly” sell airtime beyond the limits imposed by of its right to due process of law.
the Resolutions, because the element of knowledge is clearly GMA then concludes that it is also entitled to a temporary
absent from the provisions thereof. This makes the provisions restraining order, because the implementation of the
have the nature of malum prohibitum. Resolutions in question will cause grave and irreparable
Next, GMA also says that the application of the aggregate damage to it by disrupting and emasculating its mandate to
airtime limit constitutes prior restraint and is provide television and radio services to the public, and by
unconstitutional, opining that “[t]he reviewing power of exposing it to the risk of incurring criminal and
respondent COMELEC and its sole judgment of a news event administrative liability by requiring it to perform the
as a political advertisement are so pervasive under the impossible task of surveillance and monitoring, or the
assailed Resolutions, and provoke the distastes or chilling broadcasts of other radio and television stations.
Thereafter, on April 4, 2013, the COMELEC, through the advertisements will be charged against his airtime limits by
Office of the Solicitor General (OSG), filed a Supplemental pointing out that what will be counted against a candidate’s
Comment and Opposition17 where it further expounded on the airtime and expenditures are those advertisements that have
legislative intent behind the Fair Election Act, also quoting been paid for or donated to them to which the candidate has
portions of the deliberations of the Bicameral Conference given consent.
Committee, allegedly adopting the Senate Bill version setting With regard to the attack that the total aggregate airtime
the computation of airtime limits on a per candidate, not per limit constitutes prior restraint or undue abridgement of the
station, basis. Thus, as enacted into law, the wordings of freedom of speech and expression, the COMELEC counters
Section 6 of the Fair Election Act shows that the airtime limit that “the Resolutions enjoy constitutional and
is imposed on a per candidate basis, rather than on a per congressional imprimatur. It is the Constitution itself that
station basis. Furthermore, the COMELEC states that imposes the restriction on the freedoms of speech and
petitioner-intervenor Senator Cayetano is wrong in arguing expression, during
that there should be empirical data to support the need to _______________
change the computation of airtime limits from a per station
18 C. THE COMMISSION ON ELECTIONS
basis to a xxxx
_______________ Sec. 2. The Commission on Elections shall exercise the following powers
and functions:
17 Id., at pp. 917-937. xxxx
122 (7) Recommend to the Congress effective measures to minimize election
122 SUPREME COURT REPORTS ANNOTATED spending, including limitation of places where propaganda materials shall be
GMA Network, Inc. vs. Commission on Elections posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates.
per candidate basis, because nothing in law obligates the 123
COMELEC to support its Resolutions with empirical data, as VOL. 734, SEPTEMBER 2, 2014 123
said airtime limit was a policy decision dictated by the GMA Network, Inc. vs. Commission on Elections
legislature itself, which had the necessary empirical and other election period, to promote an important and significant
data upon which to base said policy decision. governmental interest, which is to equalize, as far as
practicable, the situation of rich and poor candidates by
The COMELEC then points out that Section 2(7),18 Article preventing the former from enjoying the undue advantage
IX(C) of the Constitution empowers it to recommend to offered by huge campaign ‘war chests.’”19
Congress effective measures to minimize election spending Lastly, the COMELEC also emphasizes that there is no
and in furtherance of such constitutional power, the impairment of the people’s right to information on matters of
COMELEC issued the questioned Resolutions, in faithful public concern, because in this case, the COMELEC is not
implementation of the legislative intent and objectives of withholding access to any public record.
the Fair Election Act. On April 16, 2013, this Court issued a Temporary
Restraining Order20 (TRO) in view of the urgency involved and
The COMELEC also dismisses Senator Cayetano’s fears to prevent irreparable injury that may be caused to the
that unauthorized or inadvertent inclusion of his name,
initial, image, brand, logo, insignia and/or symbol in tandem
petitioners if respondent COMELEC is not enjoined from certain documents to aid the COMELEC in ensuring that
implementing Resolution No. 9615. candidates are not sold airtime in excess of the allowed limits.
On April 19, 2013 respondent filed an Urgent Motion to Lift Also, as discussed in the earlier Comment, the prior notice
Temporary Restraining Order and Motion for Early requirement is a mechanism designed to inform the
Resolution of the Consolidated Petitions.21 COMELEC of the appearances or guesting of candidates
On May 8, 2013, petitioners ABS-CBN and the KBP filed in bona fide news broadcasts. It is for monitoring purposes
its Opposition/Comment22 to the said Motion. Not long after, only, not censorship. It does not control the subject matter of
ABC followed suit and filed its own Opposition to the news broadcasts in anyway. Neither does it prevent media
Motion23 filed by the respondent. outlets from covering candidates in news interviews, news
In the interim, respondent filed a Second Supplemental events, and news documentaries, nor prevent the candidates
Comment and Opposition24 dated April 8, 2013. from appearing thereon.
In the Second Supplemental Comment and Opposition, As for the right to reply, respondent insists that the right
respondent delved on points which were not previously to reply provision cannot be considered a prior restraint on the
discussed in its earlier Comment and Supplemental freedoms of expression, speech and the press, as it does not in
Comment, particularly those raised in the petition filed by any way restrict the airing of bona fide new broadcasts. Media
petitioner ABS-CBN and KBP. entities are free to report any news event, even if it should
_______________ turn out to be unfavourable to a candidate or party. The
assailed Resolutions merely give the candidate or party the
19 Supplemental Comment and Opposition, p. 17.
20 Rollo (G.R. No. 205357), p. 996. right to reply to such charges published or aired against them
21 Rollo (G.R. No. 205357), pp. 378-385. in news broadcasts.
22 Id., at pp. 386-395. Moreover, respondent contends that the imposition of the
23 Id., at pp. 352-361.
penalty of suspension and revocation of franchise or permit
24 Id., at pp. 362-377.
124 for the sale or donation of airtime beyond the allowable limits
124 SUPREME COURT REPORTS ANNOTATED is sanctioned by the Omnibus Election Code.
125
GMA Network, Inc. vs. Commission on Elections
VOL. 734, SEPTEMBER 2, 2014 125
GMA Network, Inc. vs. Commission on Elections
Respondent maintains that certiorari is not the proper
remedy to question the Constitutionality of the assailed
Resolutions and that petitioners ABS-CBN and KBP have Meanwhile, RMN filed its Petition on April 8, 2013. On
no locus standi to file the present petition. June 4, 2013, the Court issued a Resolution25 consolidating the
Respondent posits that contrary to the contention of case with the rest of the petitions and requiring respondent to
petitioners, the legislative history of R.A. No. 9006 comment thereon.
conclusively shows that congress intended the airtime limits On October 10, 2013, respondent filed its Third
to be computed on a “per candidate” and not on a “per station” Supplemental Comment and Opposition.26 Therein,
basis. In addition, the legal duty of monitoring lies with the respondent stated that the petition filed by RMN repeats the
COMELEC. Broadcast stations are merely required to submit issues that were raised in the previous petitions. Respondent,
likewise, reiterated its arguments that certiorari is not the
proper remedy to question the assailed resolutions and that their being the subject of an improper remedy, in view of the
RMN has no locus standi to file the present petition. public importance of the issues raised therein.27
Respondent maintains that the arguments raised by RMN, It has been in the past, we do so again.
like those raised by the other petitioners are without merit Locus Standi
and that RMN is not entitled to the injunctive relief sought. Every time a constitutional issue is brought before the
The petition is partly meritorious. Court, the issue of locus standi is raised to question the
At the outset, although the subject of the present petitions personality of the parties invoking the Court’s jurisdiction.
are Resolutions promulgated by the COMELEC relative to the The Court has routinely made reference to a liberalized stance
conduct of the 2013 national and local elections, nevertheless when it comes to petitions raising issues of transcendental
the issues raised by the petitioners have not been rendered importance to the country. Invariably, after some discussions,
moot and academic by the conclusion of the 2013 elections. the Court would eventually grant standing.28
Considering that the matters elevated to the Court for _______________
resolution are susceptible to repetition in the conduct of future
27 Dela Llana v. Chairperson, Commission on Audit, G.R. No. 180989,
electoral exercises, these issues will be resolved in the present February 7, 2012, 665 SCRA 176, 184.
action. 28 De Castro v. Judicial and Bar Council (JBC), G.R. No. 191032, G.R.
Procedural Aspects No. 191057, A.M. No. 10-2-5-SC, G.R. No. 191149, March 17, 2010, 615 SCRA
666; Association of Small Landowners in the Philippines, Inc. v. Sec. of
Matters of procedure and technicalities normally take a
Agrarian Reform, 256 Phil. 777; 175 SCRA 343 (1989); Albano v. Reyes, 256
backseat when issues of substantial and transcendental Phil. 718; 175 SCRA 264 (1989); Kapatiran ng mga Naglilingkod sa
importance are presented before the Court. So the Court does Pamahalaan ng Pilipinas, Inc. v. Tan, 246 Phil. 380; 163 SCRA 371
again in this particular case. (1988); Legaspi v. Civil Service Commission, 234 Phil. 521; 150 SCRA 530
_______________ (1987); Tañada v. Tuvera, 220 Phil. 422; 136 SCRA 27 (1985).
127
25 Rollo (G.R. No. 206360), p. 86. VOL. 734, SEPTEMBER 2, 2014 127
26 Rollo (G.R. No. 205374), pp. 402-413. GMA Network, Inc. vs. Commission on Elections
126
126 SUPREME COURT REPORTS ANNOTATED
In this particular case, respondent also questions the
GMA Network, Inc. vs. Commission on Elections standing of the petitioners. We rule for the petitioners. For
petitioner-intervenor Senator Cayetano, he undoubtedly has
Proper Remedy standing since he is a candidate whose ability to reach out to
Respondent claims that certiorari and prohibition are not the electorate is impacted by the assailed Resolutions.
the proper remedies that petitioners have taken to question For the broadcast companies, they similarly have the
the assailed Resolutions of the COMELEC. Technically, standing in view of the direct injury they may suffer relative
respondent may have a point. However, considering the very to their ability to carry out their tasks of disseminating
important and pivotal issues raised, and the limited time, information because of the burdens imposed on them.
such technicality should not deter the Court from having to Nevertheless, even in regard to the broadcast companies
make the final and definitive pronouncement that everyone invoking the injury that may be caused to their customers or
else depends for enlightenment and guidance. “[T]his Court the public — those who buy advertisements and the people
has in the past seen fit to step in and resolve petitions despite
who rely on their broadcasts — what the Court said in White Nonetheless, the general rules on standing admit of several
Light Corporation v. City of Manila29 may dispose of the exceptions such as the overbreadth doctrine, taxpayer suits, third
question. In that case, there was an issue as to whether party standing and, especially in the Philippines, the doctrine of
owners of establishments offering “wash-up” rates may have transcendental importance.
For this particular set of facts, the concept of third party
the requisite standing on behalf of their patrons’ equal
standing as an exception and the overbreadth doctrine are
protection claims relative to an ordinance of the City of
appropriate. x x x
Manila which prohibited “short-time” or “wash-up” xxxx
accommodation in motels and similar establishments. The American jurisprudence is replete with examples where parties-
Court essentially condensed the issue in this manner: “[T]he in-interest were allowed standing to advocate or invoke the
crux of the matter is whether or not these establishments fundamental due process or equal protection claims of other persons
have the requisite standing to plead for protection of their or classes of persons injured by state action. x x x
patrons’ equal protection rights.”30 The Court then went on to xxxx
hold: Assuming arguendo that petitioners do not have a relationship
with their patrons for the former to assert the rights of the latter,
Standing or locus standi is the ability of a party to demonstrate the overbreadth doctrine comes into play. In overbreadth analysis,
to the court sufficient connection to and harm from the law or action challengers to government action are in effect permitted to raise the
challenged to support that party’s participation in the case. More rights of third parties. Generally applied to statutes infringing on
importantly, the doctrine of standing is built on the principle of the freedom of speech, the overbreadth doctrine applies when a
separation of powers, sparing as it does unnecessary interference or statute needlessly restrains even constitutionally guaranteed
invalidation by the judicial branch of the actions rendered by its rights. In this case, the petitioners claim that the Ordinance makes
coequal branches of government. a sweeping intrusion into the right to liberty of their clients. We can
_______________ see that based on the allegations in the petition, the Ordinance
suffers from overbreadth.
29 G.R. No. 122846, January 20, 2009, 576 SCRA 416. 129
30 Id., at p. 429. VOL. 734, SEPTEMBER 2, 2014 129
128 GMA Network, Inc. vs. Commission on Elections
128 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections We thus recognize that the petitioners have a right to assert the
constitutional rights of their clients to patronize their
The requirement of standing is a core component of the judicial establishments for a “wash-rate” time frame.31
system derived directly from the Constitution. The constitutional If in regard to commercial undertakings, the owners may
component of standing doctrine incorporates concepts which have the right to assert a constitutional right of their clients,
concededly are not susceptible of precise definition. In this with more reason should establishments which publish and
jurisdiction, the extancy of “a direct and personal interest” presents broadcast have the standing to assert the constitutional
the most obvious cause, as well as the standard test for a freedom of speech of candidates and of the right to information
petitioner’s standing. In a similar vein, the United States Supreme of the public, not to speak of their own freedom of the press.
Court reviewed and elaborated on the meaning of the three
So, we uphold the standing of petitioners on that basis.
constitutional standing requirements of injury, causation, and
Substantive Aspects
redressability in Allen v. Wright.
Aggregate Time Limits For this purpose, the COMELEC shall require any broadcast station or
entity to submit to the COMELEC a copy of its broadcast logs and certificates
COMELEC Resolution No. 9615 introduced a radical of performance for the review and verification of the frequency, date, time and
departure from the previous COMELEC resolutions relative duration of advertisements broadcast for any candidate or political party.
to the airtime limitations on political advertisements. This 6.3. All mass media entities shall furnish the COMELEC with a copy of
essentially consists in computing the airtime on all contracts for advertising, promoting or opposing any political party or the
candidacy of any person for public office within five (5) days after its signing.
an aggregate basis involving all the media of broadcast In every case, it shall be signed by the donor, the candidate concerned or by
communications compared to the past where it was done on the duly authorized representative of the political party.
a per station basis. Thus, it becomes immediately obvious 6.4. No franchise or permit to operate a radio or television stations shall
that there was effected a drastic reduction of the allowable be granted or issued, suspended or cancelled during the election period.
In all instances, the COMELEC shall supervise the use and employment
minutes within which candidates and political parties would of press, radio and television facilities insofar as the placement of political
be able to campaign through the air. The question is advertisements is concerned to ensure that candidates are given equal
accordingly whether this is within the power of the opportunities under equal circumstances to make known their qualifications
COMELEC to do or not. The Court holds that it is not within and their stand on public issues within the limits set forth in the Omnibus
Election Code and Republic Act No. 7166 on election spending.
the power of the COMELEC to do so. xxxx
a. Past elections and airtime limits 131
The authority of the COMELEC to impose airtime limits VOL. 734, SEPTEMBER 2, 2014 131
directly flows from the Fair Election Act (R.A. No. 9006 GMA Network, Inc. vs. Commission on Elections
_______________
tisement and one hundred eighty (180) minutes for radio
31 Id., at pp. 430-432. advertisement. For the 2004 elections, the respondent
130 COMELEC promulgated Resolution No. 652033 implementing
130 SUPREME COURT REPORTS ANNOTATED the airtime limits by applying said limitation on a per
GMA Network, Inc. vs. Commission on Elections station basis.34 Such manner of determining airtime limits
was likewise adopted for the 2007 elections, through
[2001])32 — one hundred (120) minutes of television adver- Resolution No. 7767.35 In the 2010 elections, under Resolution
_______________ No. 8758,36 the same was again adopted. But for the 2013
elections, the COMELEC, through Resolution No. 9615, as
32 The pertinent portions of the Fair Election Act (R.A. No. 9006) provide:
amended by Resolution No. 9631, chose to aggregate the
SECTION 6. Equal Access to Media Time and Space.—All registered
parties and bona fide candidates shall have equal access to media time and total broadcast time among the different broadcast media,
space. The following guidelines may be amplified on by the COMELEC: thus:
xxxx Section 9. Requirements and/or Limitations on the Use of
6.2. (a) Each bona fide candidate or registered political party for a Election Propaganda through Mass Media.—All parties and bona
nationally elective office shall be entitled to not more than one hundred twenty
fide candidates shall have equal access to media time and space for
(120) minutes of television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or donation. their election propaganda during the campaign period subject to the
(b) Each bona fide candidate or registered political party for a locally following requirements and/or limitations:
elective office shall be entitled to not more than sixty (60) minutes of television a. Broadcast Election Propaganda
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation; or
The duration of an airtime that a candidate, or party may use expenditures, regardless of whoever paid for the advertisements or
for their broadcast advertisements or election propaganda shall be, to whom the said advertisements were donated.
as follows: x x x x37
_______________ _______________

33 Rules and Regulations Implementing Republic Act No. 9006, 37 Emphasis supplied.
Otherwise Known as the “Fair Election Act,” in Relation to the May 10, 2004 133
Elections and Subsequent Elections. VOL. 734, SEPTEMBER 2, 2014 133
34 See Section 13(1) Resolution No. 6520.
35 Rules and Regulations Implementing Republic Act No. 9006, GMA Network, Inc. vs. Commission on Elections
Otherwise Known as the Fair Election Act, in Relation to the May 14, 2007
Synchronized National and Local Elections; See Section 13(1). Corollarily, petitioner-intervenor, Senator Cayetano,
36 Rules and Regulations Implementing Republic Act No. 9006,
Otherwise Known as the Fair Election Practices Act, in Relation to the May
alleges:
10, 2010 Synchronized National and Local Elections, and Subsequent 6.15. The change in the implementation of Section 6 of R.A.
Elections; See Section 11(a). 9006 was undertaken by respondent Comelec without consultation
132 with the candidates for the 2013 elections, affected parties such as
132 SUPREME COURT REPORTS ANNOTATED media organizations, as well as the general public. Worse, said
GMA Network, Inc. vs. Commission on Elections change was put into effect without explaining the basis therefor and
without showing any data in support of such change. Respondent
Comelec merely maintained that such action “is meant to level the
Not more than an aggregate total of one hundred
playing field between the moneyed candidates and those who don’t
For Candidates/(120) minutes of television advertising, whether
have enough resources,” without particularizing the empirical data
Registered appearing on national, regional, or local, free or upon which such a sweeping statement was based. This was evident
Political partiescable television, and one hundred eighty (180) in the public hearing held on 31 January 2013 where petitioner
for a Nationalminutes of radio advertising, whether airing on GMA, thru counsel, explained that no empirical data on the
Elective Position national, regional, or local radio, whether by excesses or abuses of broadcast media were brought to the attention
purchase or donation. of the public by respondent Comelec, or even stated in the Comelec
Not more than an aggregate total of sixty (60) Resolution No. 9615. Thus —
For Candidates/
Registered
minutes of television advertising, whether xxxx
Political parties
appearing on national, regional, or local, free or Chairman Brillantes
for a Local
cable television, and ninety (90) minutes of radio So if we can regulate and amplify, we may amplify meaning we
advertising, whether airing on national, regional, or can expand if we want to. But the authority of the Commission is if
Elective Position
local radio, whether by purchase or donation. we do not want to amplify and we think that the 120 or 180 is okay
In cases where two or more candidates or parties whose names, we cannot be compelled to amplify. We think that 120 or 180 is
initials, images, brands, logos, insignias, color motifs, symbols, or okay, is enough.
forms of graphical representations are displayed, exhibited, used, Atty. Lucila
or mentioned together in the broadcast election propaganda or But with due respect Your Honor, I think the basis of the
advertisements, the length of time during which they appear or are resolution is found in the law and the law has been enterpreted (sic)
being mentioned or promoted will be counted against the airtime before in 2010 to be 120 per station, so why the change, your Honor?
limits allotted for the said candidates or parties and the cost of the Chairman Brillantes
said advertisement will likewise be considered as their
No, the change is not there, the right to amplify is with the there any interest on the part of the media to expand it?
Commission on Elections. Nobody can encroach in our right to Atty. Lucila
amplify. Now, if in 2010 the Well, our interest Your Honor is to participate in this election
134 Your Honor and we have been constantly (sic) as the resolution says
134 SUPREME COURT REPORTS ANNOTATED and even in the part involved because you will be getting some
GMA Network, Inc. vs. Commission on Elections affirmative action time coming from the media itself and Comelec
Commission felt that per station or per network is the rule then time coming from the media itself. So we could like to be both
that is the prerogative of the Commission then they could amplify involved in the whole process of the exercise of the freedom of
it to expand it. If the current Commission feels that 120 is enough suffrage Your Honor.
for the particular medium like TV and 180 for radio, that is our Chairman Brillantes
prerogative. How can you encroach and what is unconstitutional Yes, but the very essence of the Constitutional provision as well
about it? as the provision of 9006 is actually to level the playing field. That
Atty. Lucila should be the paramount consideration. If we allow everybody to
We are not questioning the authority of the Honorable make use of all their time and all radio time and TV time then there
Commission to regulate Your Honor, we are just raising our concern will be practically unlimited use of the mass media....
on the manner of regulation because as it is right now, there is a Atty. Lucila
changing mode or sentiments of the Commission and the public has Was there in 2010 Your Honor, was there any data to support
the right to know, was there rampant overspending on political ads that there was an unlimited and abuse of a (sic) political ads in the
in 2010, we were not informed Your Honor. Was there abuse of the mass media that became the basis of this change in interpretation
media in 2010, we were not informed Your Honor. So we would like Your Honor? We would like to know about it Your Honor.
to know what is the basis of the sudden change in this Chairman Brillantes
limitation, Your Honor. . And law must have a consistent What do you think there was no abuse in 2010?
interpretation that [is] our position, Your Honor. Atty. Lucila
Chairman Brillantes As far as the network is concern, there was none Your Honor.
But my initial interpretation, this is personal to this Chairman Brillantes
representation counsel, is that if the Constitution allows us to There was none......
regulate and then it gives us the prerogative to amplify then the 136
prerogative to amplify you should leave this to the discretion of the 136 SUPREME COURT REPORTS ANNOTATED
Commission. Which means if previous Commissions felt that GMA Network, Inc. vs. Commission on Elections
expanding it should be part of our authority that was a valid
exercise if we reduce it to what is provided for by law which is 120- Atty. Lucila
180 per medium, TV, radio, that is also within the law and that is I’m sorry, Your Honor...
still within our prerogative as provided for by the Constitution. If Chairman Brillantes
you say we have to expose the candidates to the public then I think Yes, there was no abuse, okay, but there was some advantage
the reaction should come, the negative reaction should come from given to those who took... who had the more moneyed candidates
the candidates not from the media, unless you have some interest took advantage of it.
to protect directly. Is Atty. Lucila
135 But that is the fact in life, Your Honor there are poor candidates,
VOL. 734, SEPTEMBER 2, 2014 135 there are rich candidates. No amount of law or regulation can even
GMA Network, Inc. vs. Commission on Elections
level the playing filed (sic) as far as the economic station in life of b. COMELEC is duty bound to come up
the candidates are concern (sic) our Honor.38 with reasonable basis for changing the
Given the foregoing observations about what happened interpretation and implementation of
during the hearing, Petitioner-Intervenor went on to allege the airtime limits
that: There is no question that the COMELEC is the office
6.16. Without any empirical data upon which to base the constitutionally and statutorily authorized to enforce election
regulatory measures in Section 9(a), respondent laws but it cannot exercise its powers without limitations —
Comelec arbitrarily changed the rule from per station or reasonable basis. It could not simply adopt measures or
basis to aggregate airtime basis. Indeed, no credence regulations just because it feels that it is the right thing to do,
should be given to the cliched explanation of respondent insofar as it might be concerned. It does have discretion, but
Comelec (i.e., leveling the playing field) in its published such discretion is something that must be exercised within the
statements which in itself is a mere reiteration of the bounds and intent of the law. The COMELEC is not free to
rationale for the enactment of the political ad ban of Republic simply change the rules especially if it has consistently
Act No. 6646, and which has likewise been foisted when said interpreted a legal provision in a particular manner in the
political ad ban was lifted by R.A. 9006.39 past. If ever it has to change the rules, the same must be
properly explained with sufficient basis.
From the foregoing, it does appear that the COMELEC did Based on the transcripts of the hearing conducted by the
not have any other basis for coming up with a new manner of COMELEC after it had already promulgated the Resolution,
determining allowable time limits except its own idea as to the respondent did not fully explain or justify the change in
_______________
computing the airtime allowed candidates and political
38 Motion for Leave to Intervene and to File and Admit the Herein parties, except to make reference to the need to “level the
Attached Petition-in-Intervention, pp. 15-20; Rollo (G.R. No. 205357), pp. 347- playing field.” If the “per station” basis was deemed enough to
352, citing TSN of the Comelec hearing on January 31, 2013, pp. 6-12. comply
(Emphasis supplied)
_______________
39 Id., at p. 20. (Emphasis and underscoring in the original)
137
VOL. 734, SEPTEMBER 2, 2014 137 40 TSN, E.M. Nos. 13-001 to 02, January 31, 2013, p. 8.
(Emphasis supplied)
GMA Network, Inc. vs. Commission on Elections 138
what should be the maximum number of minutes based on its 138 SUPREME COURT REPORTS ANNOTATED
exercise of discretion as to how to level the playing field. The GMA Network, Inc. vs. Commission on Elections
same could be encapsulized in the remark of the COMELEC with that objective in the past, why should it now be suddenly
Chairman that “if the Constitution allows us to regulate and inadequate? And, the short answer to that from the
then it gives us the prerogative to amplify then the respondent, in a manner which smacks of overbearing
prerogative to amplify you should leave this to the exercise of discretion, is that it is within the discretion of the
discretion of the Commission.”40 COMELEC. As quoted in the transcript, “the right to amplify
The Court could not agree with what appears as a is with the COMELEC. Nobody can encroach in our right to
nonchalant exercise of discretion, as expounded anon. amplify. Now, if in 2010 the Commission felt that per station
or per network is the rule then that is the prerogative of the are entitled to a reasonable and rational basis for any changes
Commission then they could amplify it to expand it. If the in those rules by which they are supposed to live by, especially
current Commission feels that 120 is enough for the particular if there is a radical departure from the previous ones.
medium like TV and 180 for radio, that is our prerogative. c. The COMELEC went beyond the authority
How can you encroach and what is unconstitutional about granted it by the law in adopting “aggregate” basis in
it?”41 the determination of allowable airtime
The law, which is the basis of the regulation subject of
There is something basically wrong with that manner of these petitions, pertinently provides:
explaining changes in administrative rules. For one, it does 6.2. (a) Each bona fide candidate or registered political
not really provide a good basis for change. For another, those party for a nationally elective office shall be entitled to not
affected by such rules must be given a better explanation why more than one hundred twenty (120) minutes of television
the previous rules are no longer good enough. As the Court advertisement and one hundred eighty (180) minutes of radio
has said in one case: advertisement whether by purchase or donation.
While stability in the law, particularly in the business field, is (b) Each bona fide candidate or registered political party
desirable, there is no demand that the NTC slavishly follow for a locally elective office shall be entitled to not more than
precedent. However, we think it essential, for the sake of clarity and sixty (60) minutes of television advertisement and ninety (90)
intellectual honesty, that if an administrative agency decides minutes of radio advertisement whether by purchase or
inconsistently with previous action, that it explain thoroughly why
donation; x x x
a different result is warranted, or if need be, why the previous
The law, on its face, does not justify a conclusion that the
standards should no longer apply or should be overturned. Such
explanation is warranted in order to sufficiently establish a decision maximum allowable airtime should be based on the totality of
as having rational basis. Any inconsistent decision lacking possible broadcast in all television or radio stations. Senator
thorough, ratiocination in support may be struck down as being Cayetano has called our attention to the legislative intent
arbitrary. And any decision with absolutely nothing to support it is relative to the airtime allowed — that it should be on a “per
a nullity.42 station” basis.43
_______________

_______________
41 Motion for Leave to Intervene and to File and Admit the Herein
Attached Petition-in-Intervention, p. 18; Rollo (G.R. No. 205357), p. 350.
43 Motion for Leave to Intervene and to File and Admit the Herein Attached Petition-in-
42 Globe Telecom, Inc. v. National Telecommunications Commission, 479 Intervention, pp. 21-24; Rollo (G.R. No. 205357), pp. 353-356.
Phil. 1, 33-34; 435 SCRA 110, 144-145 (2004). 140
139 140 SUPREME COURT REPORTS ANNOTATED
VOL. 734, SEPTEMBER 2, 2014 139
GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections
This is further buttressed by the fact that the Fair Election
What the COMELEC came up with does not measure up to Act (R.A. No. 9006) actually repealed the previous provision,
that level of requirement and accountability which elevates Section 11(b) of Republic Act No. 6646,44 which prohibited
administrative rules to the level of respectability and direct political advertisements — the so-called “political ad
acceptability. Those governed by administrative regulations ban.” If under the previous law, no candidate was allowed to
directly buy or procure on his own his broadcast or print against any candidate unless they hear the names and addresses of
campaign advertisements, and that he must get it through the printed and payor as required in Section 84 hereof;
the COMELEC Time or COMELEC Space, R.A. No. 9006 “(b) To erect, put up, make use of, attach, float or display any
relieved him or her from that restriction and allowed him or billboard, tinplate-poster, balloons and the like, of whatever size,
shape, form or kind, advertising for or against any candidate or
her to broadcast time or print space subject to the limitations
political party;
set out in the law. Congress, in enacting R.A. No. 9006, felt
“(c) To purchase, manufacture, request, distribute or accept
that the previous law was not an effective and efficient way of electoral propaganda gadgets, such as pens, lighters, fans of
giving voice to the people. Noting the debilitating effects of the whatever nature, flashlights, athletic goods or materials, wallets,
previous law on the right of suffrage and Philippine shirts, hats, bandannas, matches, cigarettes and the like, except
democracy, Congress decided to repeal such rule by enacting that campaign supporters accompanying a candidate shall be
the Fair Election Act. allowed to wear hats and/or shirts or T-shirts advertising a
candidate;
In regard to the enactment of the new law, taken in the “(d) To show or display publicly any advertisement or
context of the restrictive nature of the previous law, the propaganda for or against any candidate by means of
sponsorship speech of Senator Raul Roco is enlightening: cinematography, audio-visual units or other screen projections
except telecasts which may be allowed as hereinafter provided; and
The bill seeks to repeal Section 85 of the Omnibus Election Code “(e) For any radio broadcasting or television station to sell or
and Sections 10 and 11 of RA 6646. In view of the importance of give free of charge airtime for campaign and other political purposes
their appeal in connection with the thrusts of the bill, I hereby quote except as authorized in this Code under the rules and regulations
these sections in full: promulgated by the Commission pursuant thereto;
_______________ “Any prohibited election propaganda gadget or advertisement
shall be stopped, confiscated or torn down by the representative of
44 Sec. 11. Prohibited Forms of Election Propaganda.—In addition to the the Commission upon specific authority of the Commission.”
forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. “SEC. 10. Common Poster Areas.—The Commission shall
881, it shall be unlawful:
xxxx
designate common poster areas in strategic public places such as
b. for any newspaper, radio broadcasting or television station, or other mass markets, barangaycenters and the like wherein candidates can
media, or any person making use of the mass media to sell or to give free of charge post, display or exhibit election propaganda to announce or further
print space or airtime for campaign or other political purposes except to the their candidacy.
Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. 142
Any mass media columnist, commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of absence from his work
142 SUPREME COURT REPORTS ANNOTATED
as such during the campaign period. GMA Network, Inc. vs. Commission on Elections
141
VOL. 734, SEPTEMBER 2, 2014 141 “Whenever feasible common billboards may be installed by the
GMA Network, Inc. vs. Commission on Elections Commission and/or nonpartisan private or civic organizations
which the Commission may authorize whenever available, after due
“SEC. 85. Prohibited forms of election propaganda.—It shall notice and hearing, in strategic areas where it may readily be seen
be unlawful: or read, with the heaviest pedestrian and/or vehicular traffic in the
“(a) To print, publish, post or distribute any poster, pamphlet, city or municipality.
circular, handbill, or printed matter urging voters to vote for or
The space in such common poster areas or billboards shall be For the foregoing reasons, we commend to our colleagues the
allocated free of charge, if feasible, equitably and impartially among early passage of Senate Bill No. 1742. In so doing, we move one step
the candidates in the province, city or municipality. towards further ensuring “free, orderly, honest, peaceful and
“SEC. 11. Prohibited Forms of Election Propaganda.—In credible elections” as mandated by the Constitution.45
addition to the forms of election propaganda prohibited under Given the foregoing background, it is therefore ineluctable
Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to to conclude that Congress intended to provide a more
draw, paint, inscribe, write, post, display or publicly exhibit any expansive and liberal means by which the candidates,
election propaganda in any place, whether private or public, except political parties, citizens and other stakeholders in the
in common poster areas and/or billboards provided in the
periodic electoral exercise may be given a chance to fully
immediately preceding section, at the candidate’s own residence, or
explain and expound on their candidacies and platforms of
at the campaign headquarters of the candidate or political
party: Provided, That such posters or election propaganda shall in governance, and for the electorate to be given a chance to
no case exceed two (2) feet by three (3) feet in area; Provided, know better the personalities behind the candidates. In this
further, That at the site of and on the occasion of a public meeting regard, the media is also given a very important part in that
or rally, streamers, not more than two (2) feet and not exceeding undertaking of providing the means by which the political
three (3) feet by eight (8) each may be displayed five (5) days before exercise becomes an interactive process. All of these would be
the date of the meeting or rally, and shall be removed within undermined and frustrated with the kind of regulation that
twenty-four (24) hours after said meeting or rally; and the respondent came up with.
“(b) For any newspapers, radio broadcasting or television The respondent gave its own understanding of the import
station, or other mass media, or any person making use of the mass of the legislative deliberations on the adoption of R.A. No.
media to sell or give for free of charge print space or airtime for
9006 as follows:
campaign or other political purposes except to the Commission as _______________
provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any
mass media columnist, commentator, announcer or personality who 45 Journal of Senate, Session No. 92, 22-23 May 2000, Rollo (G.R. No.
is a candidate for any elective public office shall take a leave of 205357), pp. 126-127.
absence from his work as such during the campaign.” 144
143 144 SUPREME COURT REPORTS ANNOTATED
VOL. 734, SEPTEMBER 2, 2014 143 GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections
The legislative history of R.A. 9006 clearly shows that Congress
The repeal of the provision on the Common Poster Area intended to impose the per candidate or political party aggregate
implements the strong recommendations of the Commission on total airtime limits on political advertisements and election
Elections during the hearings. It also seeks to apply the doctrine propaganda. This is evidenced by the dropping of the “per day per
enunciated by the Supreme Court in the case of Blo Umpar Adiong station” language embodied in both versions of the House of
v. Commission on Elections, 207 SCRA 712, 31 March 1992. Here a Representatives and Senate bills in favour of the “each candidate”
unanimous Supreme Court ruled: The COMELEC’s prohibition on and “not more than” limitations now found in Section 6 of R.A. 9006.
the posting of decals and stickers on “mobile” places whether public The pertinent portions of House Bill No. 9000 and Senate Bill
or private except [in] designated areas provided for by the No. 1742 read as follows:
COMELEC itself is null and void on constitutional grounds. House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to contemplated by the law it is supposed to implement. As we
read as follows: held in Lokin, Jr. v. Commission on Elections:47
Sec. 86. Regulation of Election Propaganda Through Mass The COMELEC, despite its role as the implementing arm of the
Media.— Government in the enforcement and administration of all laws and
xxx xxx xxx regulations relative to the conduct of an election, has neither the
A) The total airtime available to the candidate and authority nor the license to expand, extend, or add anything to the
political party, whether by purchase or by donation, shall be law it seeks to implement thereby. The IRRs the COMELEC issued
limited to five (5) minutes per day in each television, cable for that purpose should always be in accord with the law to be
television and radio stations during the applicable campaign implemented, and should not override, supplant, or modify the law.
period. It is basic that the IRRs should remain consistent with the law they
Senate Bill No. 1742: intend to carry out.
SEC. 5. Equal Access to Media Space and Time.—All Indeed, administrative IRRs adopted by a particular department
registered parties and bona fide candidates shall have equal access of the Government under legislative authority must be in harmony
to media space and time. The following guidelines may be amplified with the provisions of the
by the COMELEC. _______________
xxx xxx xxx
2. The total airtime available for each registered party 46 Respondent’s Comment and Opposition, pp. 11-12; Rollo (G.R. No. 205357),
pp. 392-393. (Emphasis in the original)
and bona fide candidate whether by purchase or donation shall 47 G.R. Nos. 179431-32 and 180445, June 22, 2010, 621 SCRA 385.
not exceed a total of one (1) minute per day per television or 146
radio station. (Emphasis supplied) 146 SUPREME COURT REPORTS ANNOTATED
145
VOL. 734, SEPTEMBER 2, 2014 145 GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections law, and should be for the sole purpose of carrying the law’s
general provisions into effect. The law itself cannot be expanded by
As Section 6 of R.A. 9006 is presently worded, it can be clearly such IRRs, because an administrative agency cannot amend an act
seen that the legislature intended the aggregate airtime limits to of Congress.48
be computed on per candidate or party basis. Otherwise, if the
legislature intended the computation to be on per station basis, it
In the case of Lokin, Jr., the COMELEC’s explanation that
could have left the original “per day per station” formulation.46
the Resolution then in question did not add anything but
The Court does not agree. It cannot bring itself to read the
merely reworded and rephrased the statutory provision did
changes in the bill as disclosing an intent that the COMELEC
not persuade the Court. With more reason here since the
wants this Court to put on the final language of the law. If
COMELEC not only reworded or rephrased the statutory
anything, the change in language meant that the computation
provision — it practically replaced it with its own idea of what
must not be based on a “per day” basis for each television or
the law should be, a matter that certainly is not within its
radio station. The same could not therefore lend itself to an
authority. As the Court said in Villegas v. Subido:49
understanding that the total allowable time is to be done on
One last word. Nothing is better settled in the law than that a
an aggregate basis for all television or radio stations.
public official exercises power, not rights. The government itself is
Clearly, the respondent in this instance went beyond its merely an agency through which the will of the state is expressed
legal mandate when it provided for rules beyond what was and enforced. Its officers therefore are likewise agents entrusted
with the responsibility of discharging its functions. As such there is Political speech is one of the most important expressions
no presumption that they are empowered to act. There must be a protected by the Fundamental Law. “[F]reedom of speech, of
delegation of such authority, either express or implied. In the expression, and of the press are at the core of civil liberties
absence of a valid grant, they are devoid of power. What they do and have to be protected at all costs for the sake of
suffers from a fatal infirmity. That principle cannot be sufficiently
democracy.”51Accordingly, the same must remain unfettered
stressed. In the appropriate language of Chief Justice Hughes: “It
unless otherwise justified by a compelling state interest.
must be conceded that departmental zeal may not be permitted to
outrun the authority conferred by statute.” Neither the high dignity In regard to limitations on political speech relative to other
of the office nor the righteousness of the motive then is an state interests, an American case observed:
acceptable substitute. Otherwise the rule of law becomes a myth.
Such an eventuality, we must take all pains to avoid.50 A restriction on the amount of money a person or group can
So it was then. So does the rule still remains the same. spend on political communication during a campaign necessarily
_______________ reduces the quantity of expression by restricting the number of
issues discussed, the depth
48 Id., at p. 411. (Citations omitted) _______________
49 No. L-26534, November 28, 1969, 30 SCRA 498.
50 Id., at pp. 510-511. 51 In the Matter of the Allegations Contained in the Columns of
147 Mr. Amado P. Macasaet Published in Malaya Dated September 18,
VOL. 734, SEPTEMBER 2, 2014 147 19, 20 and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561
GMA Network, Inc. vs. Commission on Elections SCRA 395, 437.
148
d. Section 9(a) of COMELEC Resolution 148 SUPREME COURT REPORTS ANNOTATED
No. 9615 on airtime limits also goes GMA Network, Inc. vs. Commission on Elections
against the constitutional guaranty of their exploration, and the size of the audience reached. This is
of freedom of expression, of speech because virtually every means of communicating ideas in today’s
and of the press mass society requires the expenditure of money. The distribution of
the humblest handbill or leaflet entails printing, paper, and
The guaranty of freedom to speak is useless without the
circulation costs. Speeches and rallies generally necessitate hiring
ability to communicate and disseminate what is said. And a hall and publicizing the event. The electorate’s increasing
where there is a need to reach a large audience, the need to dependence on television, radio, and other mass media for news and
access the means and media for such dissemination becomes information has made these expensive modes of communication
critical. This is where the press and broadcast media come indispensable instruments of effective political speech.
along. At the same time, the right to speak and to reach out The expenditure limitations contained in the Act represent
would not be meaningful if it is just a token ability to be heard substantial, rather than merely theoretical restraints on the
by a few. It must be coupled with substantially reasonable quantity and diversity of political speech. The $1,000 ceiling on
means by which the communicator and the audience could spending “relative to a clearly identified candidate,” 18 U.S.C. §
effectively interact. Section 9(a) of COMELEC Resolution No. 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens
9615, with its adoption of the “aggregate-based” airtime limits and groups except candidates, political parties, and the
institutional press from any significant use of the most effective
unreasonably restricts the guaranteed freedom of speech and
modes of communication. Although the Act’s limitations on
of the press.
expenditures by campaign organizations and political parties petitioner GMA, the leading television network nationwide and in
provide substantially greater room for discussion and debate, they Mega Manila. In effect, under the restrictive aggregate airtime
would have required restrictions in the scope of a number of past limits in the New Rules, the three 30-second political
congressional and Presidential campaigns and would operate to advertisements of a candidate in petitioner GMA will only be
constrain campaigning by candidates who raise sums in excess of communicated to barely 40% of the viewing audience, not even the
the spending ceiling.52 voting population, but only in Mega Manila, which is defined by
Section 9(a) of COMELEC Resolution No. 9615 comes up AGB Nielsen Philippines to cover Metro Manila and certain urban
with what is challenged as being an unreasonable basis for areas in the provinces of Bulacan, Cavite, Laguna, Rizal, Batangas
determining the allowable airtime that candidates and and Pampanga. Consequently, given the voting population
political parties may avail of. Petitioner GMA came up with distribution and the drastically reduced supply of airtime as a
result of the New Rules’ aggregate airtime limits, a national
its analysis of the practical effects of such a regulation:
candidate will be forced to use all of his airtime for political
5.8. Given the reduction of a candidate’s airtime minutes in the
advertisements in television only in urban areas such as Mega
New Rules, petitioner GMA estimates that a national candidate
Manila as a political campaign tool to achieve maximum exposure.
will only have 120 minutes to 150
_______________
150 SUPREME COURT REPORTS ANNOTATED
52 Buckley v. Valeo, 424 U.S. 1, 19-20 (1976). GMA Network, Inc. vs. Commission on Elections
149
VOL. 734, SEPTEMBER 2, 2014 149 5.12. To be sure, the people outside of Mega Manila or other
GMA Network, Inc. vs. Commission on Elections urban areas deserve to be informed of the candidates in the national
utilize for his political advertisements in television during the elections, and the said candidates also enjoy the right to be voted
whole campaign period of 88 days, or will only have 81.81 seconds upon by these informed populace.53
per day TV exposure allotment. If he chooses to place his political 53 Rollo (G.R. No. 205357), pp. 25-26. (Emphasis in the
advertisements in the 3 major TV networks in equal allocation, he original)
will only have 27.27 seconds of airtime per network per day. The Court agrees. The assailed rule on “aggregate-based”
This barely translates to 1 advertisement spot on a 30-second spot airtime limits is unreasonable and arbitrary as it unduly
basis in television.
restricts and constrains the ability of candidates and political
5.9. With a 20-hour programming per day and considering the
parties to reach out and communicate with the people. Here,
limits of a station’s coverage, it will be difficult for 1 advertising
spot to make a sensible and feasible communication to the public, the adverted reason for imposing the “aggregate-based”
or in political propaganda, to “make known [a candidate’s] airtime limits — leveling the playing field — does not
qualifications and stand on public issues.” constitute a compelling state interest which would justify
5.10. If a candidate loads all of his 81.81 seconds per day in one such a substantial restriction on the freedom of candidates
network, this will translate to barely three 30-second advertising and political parties to communicate their ideas, philosophies,
spots in television on a daily basis using the same assumptions platforms and programs of government. And, this is specially
above. so in the absence of a clear-cut basis for the imposition of such
5.11. Based on the data from the 2012 Nielsen TV audience a prohibitive measure. In this particular instance, what the
measurement in Mega Manila, the commercial advertisements in COMELEC has done is analogous to letting a bird fly after
television are viewed by only 39.2% of the average total day
one has clipped its wings.
household audience if such advertisements are placed with
It is also particularly unreasonable and whimsical to adopt 55 New York Times Co. v. United States, 403 U.S. 713, 717
the aggregate-based time limits on broadcast time when we (1971).
consider that the Philippines is not only composed of so many In the ultimate analysis, when the press is silenced, or
islands. There are also a lot of languages and dialects spoken otherwise muffled in its undertaking of acting as a sounding
among the citizens across the country. Accordingly, for a board, the people ultimately would be the victims.
national candidate to really reach out to as many of the e. Section 9(a) of Resolution 9615 is violative of the
electorates as possible, then it might also be necessary that he people’s right to suffrage
conveys his message through his advertisements in languages Fundamental to the idea of a democratic and republican
and dialects that the people may more readily understand and state is the right of the people to determine their own destiny
relate to. To add all of these airtimes in different dialects through the choice of leaders they may have in government.
would greatly hamper the ability of such candidate to express Thus, the primordial importance of suffrage and the
himself — a form of suppression of his political speech. concomitant right of the people to be adequately informed for
Respondent itself states that “[t]elevision is arguably the the intelligent exercise of such birthright. It was said that:
most cost-effective medium of dissemination. Even a slight x x x As long as popular government is an end to be achieved and
increase in television exposure can significantly boost a can- safeguarded, suffrage, whatever may be the modality and form
151 devised, must continue to be the
VOL. 734, SEPTEMBER 2, 2014 151 152

GMA Network, Inc. vs. Commission on Elections 152 SUPREME COURT REPORTS ANNOTATED
didate’s popularity, name recall and electability.”54 If that be GMA Network, Inc. vs. Commission on Elections
so, then drastically curtailing the ability of a candidate to means by which the great reservoir of power must be emptied into
the receptacular agencies wrought by the people through their
effectively reach out to the electorate would unjustifiably
Constitution in the interest of good government and the common
curtail his freedom to speak as a means of connecting with the weal. Republicanism, insofar as it implies the adoption of a
people. representative type of government, necessarily points to the
54 Comment and Opposition, p. 15; id., at p. 396. enfranchised citizen as a particle of popular sovereignty and as the
Finally on this matter, it is pertinent to quote what Justice ultimate source of the established authority. He has a voice in his
Black wrote in his concurring opinion in the Government and whenever possible it is the solemn duty of the
landmark Pentagon Papers case: “In the First Amendment, judiciary, when called upon to act in justifiable cases, to give it
the Founding Fathers gave the free press the protection it efficacy and not to stifle or frustrate it. This, fundamentally, is the
must have to fulfill its essential role in our democracy. The reason for the rule that ballots should be read and appreciated, if
press was to serve the governed, not the governors. The not with utmost, with reasonable, liberality. x x x56
Government’s power to censor the press was abolished so that
the press would remain forever free to censure the It has also been said that “[c]ompetition in ideas and
Government. The press was protected so that it could bare the governmental policies is at the core of our electoral process
secrets of government and inform the people. Only a free and and of the First Amendment freedoms.”57 Candidates and
unrestrained press can effectively expose deception in political parties need adequate breathing space — including
government.”55 the means to disseminate their ideas. This could not be
reasonably addressed by the very restrictive manner by which
the respondent implemented the time limits in regard to substantial burden on, the citizenry in a matter that
political advertisements in the broadcast media. implicates the very nature of government we have adopted:
It should be understandable that when an administrative rule is
f. Resolution No. 9615 needs merely interpretative in nature, its applicability needs nothing
prior hearing before adoption further than its bare issuance for it gives no real consequence more
The COMELEC promulgated Resolution No. 9615 on than what the law itself has already prescribed. When, upon the
other hand, the administrative rule goes beyond merely providing
January 15, 2013 then came up with a public hearing on
for the means that can facilitate or render least cumbersome the
January 31, 2013 to explain what it had done, particularly on
implementation of the law but substantially adds to or increases
the aggregate-based airtime limits. This circumstance also the burden of those governed, it behooves the agency to accord at
renders the new regulation, particularly on the adoption of least to those directly affected a chance to be heard, and thereafter to
the aggregate-based airtime limit, questionable. It must not be duly informed, before that new issuance is given the force and
be overlooked that the new Resolution introduced a radical effect of law.
change in the manner in which the rules on airtime for politi- A reading of RMC 37-93, particularly considering the
_______________ circumstances under which it has been issued, convinces us that the
circular cannot be viewed simply as a
56 Moya v. Del Fierro, 69 Phil. 199, 204 (1939). _______________
57 Williams v. Rhodes, 393 U.S. 23, 32 (1968).
153 58 329 Phil. 987; 257 SCRA 200 (1996).
VOL. 734, SEPTEMBER 2, 2014 153 154
GMA Network, Inc. vs. Commission on Elections 154 SUPREME COURT REPORTS ANNOTATED
cal advertisements are to be reckoned. As such there is a need GMA Network, Inc. vs. Commission on Elections
for adequate and effective means by which they may be corrective measure (revoking in the process the previous holdings
adopted, disseminated and implemented. In this regard, it is of past Commissioners) or merely as construing Section 142(c)(1) of
not enough that they be published — or explained — after the NIRC, as amended, but has, in fact and most importantly, been
made in order to place “Hope Luxury,” “Premium More” and
they have been adopted.
“Champion” within the classification of locally manufactured
While it is true that the COMELEC is an independent
cigarettes bearing foreign brands and to thereby have them covered
office and not a mere administrative agency under the by RA 7654. Specifically, the new law would have its amendatory
Executive Department, rules which apply to the latter must provisions applied to locally manufactured cigarettes which at the
also be deemed to similarly apply to the former, not as a time of its effectivity were not so classified as bearing foreign
matter of administrative convenience but as a dictate of due brands. x x x In so doing, the BIR not simply interpreted the law;
process. And this assumes greater significance considering verily, it legislated under its quasi-legislative authority. The due
the important and pivotal role that the COMELEC plays in observance of the requirements of notice, of hearing, and of
the life of the nation. Thus, whatever might have been said publication should not have been then ignored.59
in Commissioner of Internal Revenue v. Court of 59 Id., at pp. 1007-1008. (Italics and boldface supplied)
Appeals,58 should also apply mutatis mutandis to the For failing to conduct prior hearing before coming up with
COMELEC when it comes to promulgating rules and Resolution No. 9615, said Resolution, specifically in regard to
regulations which adversely affect, or impose a heavy and the new rule on aggregate airtime is declared defective and
ineffectual.
g. Resolution No. 9615 does (Emphasis supplied)
not impose an unreasonable petitioner GMA submits that compliance with the New Rules in
burden on the broadcast order to avoid administrative or criminal liability would be unfair,
industry cruel and oppressive.
x x x x.
It is a basic postulate of due process, specifically in relation
5.43 In the present situation wherein airtime minutes shall be
to its substantive component, that any governmental rule or
shared by all television and radio stations, broadcast mass media
regulation must be reasonable in its operations and its organizations would surely encounter insurmountable difficulties
impositions. Any restrictions, as well as sanctions, must be in monitoring the airtime minutes spent by the numerous
reasonably related to the purpose or objective of the candidates for various elective positions, in real time.
government in a manner that would not work unnecessary 156
and unjustifiable burdens on the citizenry. Petitioner GMA 156 SUPREME COURT REPORTS ANNOTATED
assails certain requirements imposed on broadcast stations as GMA Network, Inc. vs. Commission on Elections
unreasonable. It explained:
5.44 An inquiry with the National Telecommunications
155 Commission (NTC) bears out that there are 372 television stations
VOL. 734, SEPTEMBER 2, 2014 155 and 398 AM and 800 FM radio stations nationwide as of June 2012.
GMA Network, Inc. vs. Commission on Elections In addition, there are 1,113 cable TV providers authorized by the
NTC to operate within the country as of the said date.
5.40 Petitioner GMA currently operates and monitors 21 FM 5.45 Given such numbers of broadcast entities and the
and AM radio stations nationwide and 8 originating television necessity to monitor political advertisements pursuant to the New
stations (including its main transmitter in Quezon City) which are Rules, petitioner GMA estimates that monitoring television
authorized to dechain national programs for airing and insertion of broadcasts of all authorized television station would
local content and advertisements. involve 7,440 manhours per day. To aggravate matters, since a
5.41 In light of the New Rules wherein a candidate’s airtime candidate may also spend his/her broadcasting minutes on cable
minutes are applied on an aggregate basis and considering that said TV, additional 281,040 manhours per day would have to be spent
Rules declare it unlawful in Section 7(d) thereof for a radio, in monitoring the various channels carried by cable TV throughout
television station or other mass media to sell or give for free airtime the Philippines. As far as radio broadcasts (both AM and FM
to a candidate in excess of that allowed by law or by said New Rules: stations) are concerned, around 23,960 manhours per day would
“Section 7. Prohibited Forms of Election Propaganda.— have to be devoted by petitioner GMA to obtain an accurate and
During the campaign period, it is unlawful: timely determination of a political candidate’s remaining airtime
xxx xxx xxx minutes. During the campaign period, petitioner GMA would have
(d) for any newspaper or publication, radio, television or to spend an estimated 27,494,720 manhours in monitoring the
cable television station, or other mass media, or any person election campaign commercials of the different candidates in the
making use of the mass media to sell or to give free of country.
charge print space or airtime for campaign or election 5.46 In order to carry-out the obligations imposed by the New
propaganda purposes to any candidate or party in excess of Rules, petitioner GMA further estimates that it would need to
the size, duration or frequency authorized by law or these engage and train 39,055 additional persons on an eight-hour shift,
rules; and assign them all over the country to perform the required
xxx xxx xxx monitoring of radio, television and cable TV broadcasts. In addition,
it would likewise need to allot radio, television, recording nonexistent duty would require them to hire and train an
equipment and computers, as well as telecommunications astounding additional 39,055 personnel working on eight-
equipment, for this surveillance and monitoring exercise, thus hour shifts all over the country.61
imputing additional costs to the company. Attached herewith are The Court holds, accordingly, that, contrary to petitioners’
the computations explaining how the
contention, the Reporting Requirement for the COMELEC’s
aforesaid figures were derived and the conservative assumptions
monitoring is reasonable.
made by petitioner GMA in reaching said figures, as Annex “H.”
_______________
5.47 Needless to say, such time, manpower requirements,
expense and effort would have to be repli- 60 Rollo (G.R. No. 205537), pp. 44-46. (Emphasis in the original)
157 61 Comment and Opposition, id., at p. 20.
VOL. 734, SEPTEMBER 2, 2014 157 158
GMA Network, Inc. vs. Commission on Elections 158 SUPREME COURT REPORTS ANNOTATED
cated by each and every radio station to ensure that they have GMA Network, Inc. vs. Commission on Elections
properly monitored around 33 national and more than 40,000 local
candidates’ airtime minutes and thus, prevent any risk of Further, it is apropos to note that, pursuant to Resolution
administrative and criminal liability.60 No. 9631,62 the respondent revised the third paragraph of
The Court cannot agree with the contentions of GMA. The Section 9(a). As revised, the provision now reads:
apprehensions of the petitioner appear more to be the result Appearance or guesting by a candidate on any bona
of a misappreciation of the real import of the regulation rather fide newscast, bona fide news interview, bona fide news
than a real and present threat to its broadcast activities. The documentary, if the appearance of the candidate is incidental to the
Court is more in agreement with the respondent when it presentation of the subject or subjects covered by the news
explained that: documentary, or on-the-spot coverage of bona fide news events,
The legal duty of monitoring lies with the Comelec. including but not limited to events sanctioned by the Commission
Broadcast stations are merely required to submit certain on Elections, political conventions, and similar activities, shall not
documents to aid the Comelec in ensuring that candidates are be deemed to be broadcast election propaganda within the meaning
of this provision. For purposes of monitoring by the
not sold airtime in excess of the allowed limits. These
COMELEC and ensuring that parties and candidates were
documents include: (1) certified true copies of broadcast logs,
afforded equal opportunities to promote their candidacy,
certificates of performance, and certificates of acceptance, or the media entity shall give prior notice to the COMELEC,
other analogous record on specified dates (Section 9[d][3], through the appropriate Regional Election Director (RED),
Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and or in the case of the National Capital Region (NCR), the
(2) copies of all contract for advertising, promoting or opposing Education and Information Department (EID). If such prior
any political party or the candidacy of any person for public notice is not feasible or practicable, the notice shall be sent
office within five (5) days after its signing (Section 6.3, R.A. within twenty-four (24) hours from the first broadcast or
9006). publication. Nothing in the foregoing sentence shall be construed
***** as relieving broadcasters, in connection with the presentation of
[T]here is absolutely no duty on the broadcast stations to newscasts, news interviews, news documentaries, and on-the-spot
coverage of news events, from the obligation imposed upon them
do monitoring, much less monitoring in real time. GMA
under Sections 10 and 14 of these Rules.63
grossly exaggerates when it claims that the
Further, the petitioner in G.R. No. 205374 assails the
constitutionality of such monitoring requirement, contending, Comparing the original with the revised paragraph, one
among others, that it constitutes prior restraint. The Court could readily appreciate what the COMELEC had done — to
finds otherwise. Such a requirement is a reasonable means modify the requirement from “prior approval” to “prior
adopted by the COMELEC to ensure that parties and candi- notice.” While the former may be suggestive of a censorial
_______________ tone,
_______________
62 Promulgated on February 1, 2013.
63 Emphasis supplied. 64 Emphasis and italics supplied.
159 160
VOL. 734, SEPTEMBER 2, 2014 159 160 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections GMA Network, Inc. vs. Commission on Elections
dates are afforded equal opportunities to promote their thus inviting a charge of prior restraint, the latter is more in
respective candidacies. Unlike the restrictive aggregate-based the nature of a content-neutral regulation designed to assist
airtime limits, the directive to give prior notice is not unduly the poll body to undertake its job of ensuring fair elections
burdensome and unreasonable, much less could it be without having to undertake any chore of approving or
characterized as prior restraint since there is no restriction on disapproving certain expressions.
dissemination of information before broadcast. Also, the right to reply provision is reasonable
Additionally, it is relevant to point out that in the original In the same way that the Court finds the “prior notice”
Resolution No. 9615, the paragraph in issue was worded in requirement as not constitutionally infirm, it similarly
this wise: concludes that the “right to reply” provision is reasonable and
Appearance or guesting by a candidate on any bona consistent with the constitutional mandate.
fide newscast, bona fide news interview, bona fide news Section 14 of Resolution No. 9615, as revised by Resolution
documentary, if the appearance of the candidate is incidental to the No. 9631, provides:
presentation of the subject or subjects covered by the news SECTION 14. Right to Reply.—All registered political
documentary, or on-the-spot coverage of bona fide news events, parties, party-list groups or coalitions and bona fide candidates
including but not limited to events sanctioned by the Commission shall have the right to reply to charges published or aired against
on Elections, political conventions, and similar activities, shall not them. The reply shall be given publicity by the newspaper,
be deemed to be broadcast election propaganda within the meaning television, and/or radio station which first printed or aired the
of this provision. To determine whether the appearance or
charges with the same prominence or in the same page or section
guesting in a program is bona fide, the broadcast stations or
or in the same time slot as the first statement.
entities must show that (1) prior approval of the Commission Registered political parties, party-list groups or coalitions
was secured; and (2) candidates and parties were afforded and bona fide candidates may invoke the right to reply by
equal opportunities to promote their candidacy. Nothing in
submitting within a non-extendible period of forty-eight hours from
the foregoing sentence shall be construed as relieving broadcasters, first broadcast or publication, a formal verified claim against the
in connection with the presentation of newscasts, news interviews, media outlet to the COMELEC, through the appropriate RED. The
news documentaries, and on-the-spot coverage of news events, from claim shall include a detailed enumeration of the circumstances and
the obligation imposed upon them under Sections 10 and 14 of these occurrences which warrant the invocation of the right to reply and
Rules.64 must be accompanied by supporting evidence, such a copy of the
publication or recording of the television or radio broadcast, as the 162
case may be. If the supporting evidence is not yet available due to 162 SUPREME COURT REPORTS ANNOTATED
circumstances beyond the power of the claimant, the latter shall GMA Network, Inc. vs. Commission on Elections
supplement his claim as soon as the supporting evidence becomes ply provision in the Assailed Resolution and the supposed
available, without delay on the part of the claimant. The claimant governmental interest it attempts to further.65
must likewise furnish a copy of The Constitution itself provides as part of the means to
161
ensure free, orderly, honest, fair and credible elections, a task
VOL. 734, SEPTEMBER 2, 2014 161
addressed to the COMELEC to provide for a right to
GMA Network, Inc. vs. Commission on Elections reply.66 Given that express constitutional mandate, it could be
the verified claim and its attachments to the media outlet concerned
seen that the Fundamental Law itself has weighed in on the
prior to the filing of the claim with the COMELEC.
balance to be struck between the freedom of the press and the
The COMELEC, through the RED, shall view the verified claim
within forty-eight (48) hours from receipt thereof, including right to reply. Accordingly, one is not merely to see the
supporting evidence, and if circumstances warrant, give notice to equation as purely between the press and the right to reply.
the media outlet involved for appropriate action, which shall, Instead, the constitutionally-mandated desiderata of free,
within forty-eight (48) hours, submit its comment, answer or orderly, honest, peaceful, and credible elections would
response to the RED, explaining the action it has taken to address necessarily have to be factored in trying to see where the
the claim. The media outlet must likewise furnish a copy of the said balance lies between press and the demands of a right-to-
comment, answer or response to the claimant invoking the right to reply.
reply.
Should the claimant insist that his/her right to reply was not Moreover, as already discussed by the Court
addressed, he/she may file the appropriate petition and/or
in Telecommunications and Broadcast Attorneys of the
complaint before the Commission on Elections or its field offices,
Philippines, Inc. v. Commission on Elections:67
which shall be endorsed to the Clerk of Court.
In truth, radio and television broadcasting companies, which are
The attack on the validity of the “right to reply” provision
given franchises, do not own the airwaves and frequencies through
is primarily anchored on the alleged ground of prior restraint, which they transmit broadcast
specifically insofar as such a requirement may have a chilling _______________
effect on speech or of the freedom of the press.
Petitioner ABC states, inter alia: 65 Rollo (G.R. No. 205374), pp. 67-68.
66 Art. IX(C), Sec. 4 of the Constitution, provides in part:
5.145. A “conscious and detailed consideration” of the interplay
The Commission may, during the election period, supervise or regulate the
of the relevant interests — the constitutional mandate granting enjoyment or utilization of all franchises or permits for the operation of
candidates the right to reply and the inviolability of the transportation and other public utilities, media of communication or
constitutional freedom of expression, speech, and the press — will information, all grants, special privileges, or concessions granted by the
show that the Right to Reply, as provided for in the Assailed Government or any subdivision, agency, or instrumentality thereof, including
Resolution, is an impermissible restraint on these fundamental any government-owned or -controlled corporation or its subsidiary. Such
freedoms. supervision or regulation shall aim to ensure equal opportunity, time and
space, and the right to reply, including reasonable, equal rates therefor, for
5.146. An evaluation of the factors set forth in Soriano (for the public information campaigns and forums among candidates in connection
balancing of interests test) with respect to the present controversy with the objective of holding free, orderly, honest, peaceful, and credible
will show that the Constitution does not tilt the balance in favor of elections. (Emphasis supplied)
the Right to Re- 67 G.R. No. 132922, April 21, 1998, 289 SCRA 337.
163 truder. Rowan v. Post Office Dept., 397 U.S. 728, 25 L Ed 2d 736, 90
VOL. 734, SEPTEMBER 2, 2014 163 S Ct 1484. Because the broadcast audience is constantly tuning in
GMA Network, Inc. vs. Commission on Elections and out, prior warnings cannot completely protect the listener or
viewer from unexpected program content. To say that one may
avoid further offense by turning off the radio when he hears
Relevant to this aspect are these passages from an indecent language is like saying that the remedy for an assault is
to run away after the first blow. One may hang up on an indecent
American Supreme Court decision with regard to
phone call, but that option does not give the caller a constitutional
broadcasting, right to reply requirements, and the limitations immunity or avoid a harm that has already taken place.
on speech: Second, broadcasting is uniquely accessible to children, even
We have long recognized that each medium of expression those too young to read. Although Cohen’s written message might
presents special First Amendment problems. Joseph Burstyn, have been incomprehensible to a first grader, Pacifica’s broadcast
Inc. v. Wilson, 343 U.S. 495, 502-503, 96 L Ed 1098, 72 S Ct could have enlarged a child’s vocabulary in an instant. Other forms
777. And of all forms of communication, it is broadcasting of offensive expression may be withheld from the young without
that has received the most limited First Amendment restricting the expression at its source. Bookstores and motion
protection. Thus, although other speakers cannot be licensed picture theaters, for example, may be prohibited from making
except under laws that carefully define and narrow official indecent material available to children. We held in Ginsberg v. New
discretion, a broadcaster may be deprived of his license and his York, 390 U.S. 629, that the government’s interest in the “well-
forum if the Commission decides that such an action would serve being of its youth” and in supporting “parents’ claim to authority in
“the public interest, convenience, and necessity.” Similarly, their own household” justified the regulation of otherwise protected
although the First Amendment protects newspaper expression. The ease with which children may obtain access to
publishers from being required to print the replies of those broadcast material, coupled with the concerns recognized
whom they criticize, Miami Herald Publishing Co. v. Tornillo, in Ginsberg, amply justify special treatment of indecent
418 U.S. 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such broadcasting.69
protection to broadcasters; on the contrary, they must give Given the foregoing considerations, the traditional notions
free time to the victims of their criticism. Red Lion
of preferring speech and the press over so many other values
Broadcasting Co. v. FCC, 395 U.S. 367, 23 L Ed 2d 371, 89 S Ct
of society do not readily lend itself to this particular matter.
1794.
The reasons for these distinctions are complex, but two have Instead, additional weight should be accorded on the
relevance to the present case. First, the broadcast media have constitutional directive to afford a right to reply. If there was
established a uniquely pervasive presence in the lives of all no such mandate, then the submissions of petitioners may
Americans. Patently offensive, indecent material presented over more easily commend themselves for this Court’s acceptance.
the airwaves confronts the citizen not only in public, but also in the But as noted
privacy of the home, where the individual’s right to be left alone _______________
plainly outweighs the First Amendment rights of an in-
_______________ 69 Federal Communications Commission v. Pacifica Foundation, 438 U.S.
726, 748-750 (1978). (Emphases supplied)
68 Id., at p. 349. 165
164 VOL. 734, SEPTEMBER 2, 2014 165
164 SUPREME COURT REPORTS ANNOTATED GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections
above, this is not the case. Their arguments simplistically CARPIO, J.:
provide minimal importance to that constitutional command I join the ponencia’s holding striking down Section 9(a) of
to the point of marginalizing its importance in the equation. COMELEC Resolution No. 9615, as amended, (Resolution) for
In fine, when it comes to election and the exercise of being violative of the Free Speech Clause of the Constitution.
freedom of speech, of expression and of the press, the latter In addition, however, I vote to strike down Section 6.2 of the
must be properly viewed in context as being necessarily made Fair Elections Act (Republic Act No. 9006 [RA 9006]) for
to accommodate the imperatives of fairness by giving teeth similarly trenching on the freedoms of speech and of
and substance to the right to reply requirement. expression of candidates and political parties. I find this
WHEREFORE, premises considered, the petitions conclusion inevitable as Section 9(a) of the Resolution is
are PARTIALLY GRANTED, Section 9(a) of Resolution No. merely the administrative rule implementing Section 6.2 of
9615, as amended by Resolution No. 9631, is RA 9006.
declared UNCONSTITUTIONAL and, Minimizing Election Spending the Intended
therefore, NULL and VOID. The constitutionality of the Government Interest in Capping Campaign Airtime
remaining provisions of Resolution No. 9615, as amended by The COMELEC grounds its issuance of the Resolution not
Resolution No. 9631, is upheld and remain in full force and only on RA 9006 but also on two provisions of the
effect. Constitution,1 namely, Section 2(7) and Section 4, both of
In view of this Decision, the Temporary Restraining Order Article IX-C. Section 2(7) concerns the power of the
issued by the Court on April 16, 2013 is hereby COMELEC to “[r]ecommend to the Congress effective
made PERMANENT. measures to minimize election spending, x x x.”2On the other
SO ORDERED. hand, Section 4 authorizes the COMELEC, during the
Velasco, Jr., Leonardo-De Castro, Brion,** Bersamin, Del election period, to “supervise or regulate the enjoyment and
Castillo, Villarama, Jr., Perez, Mendoza,** Reyes and Perlas- utilization of all franchises x x x for the operation of x x x
Bernabe, JJ., concur. media of communication or information x x x.”3 Different
Sereno, CJ., On Official Leave. constitutional values underpin
Carpio,*** J., See Separate Concurring Opinion. _______________
Leonen, J., See Separate Concurring Opinion.
Jardeleza, J., On Leave. 1 Decision, p. 113.
_______________ 2 The provision reads in full: “Recommend to the Congress
effective measures to minimize election spending, including
* * On Official Leave.
limitation of places where propaganda materials shall be
* ** Designated Acting Chief Justice per Special Order No. 1770 dated
August 28, 2014. Certified that Justices Brion and Mendoza left their vote posted, and to prevent and penalize all forms of election
concurring with the ponencia. frauds, offenses, malpractices, and nuisance candidacies.”
166 3 The provision reads in full: “The Commission may, during
166 SUPREME COURT REPORTS ANNOTATED the election period, supervise or regulate the enjoyment or
GMA Network, Inc. vs. Commission on Elections utilization of all franchises or permits for the operation of
transportation and
SEPARATE CONCURRING OPINION 167
VOL. 734, SEPTEMBER 2, 2014 167 168
GMA Network, Inc. vs. Commission on Elections 168 SUPREME COURT REPORTS ANNOTATED
these two provisions. Section 2(7) advances the government GMA Network, Inc. vs. Commission on Elections
interest of keeping election spending to a minimum to
maximize competition in electoral exercises while Section 4 Section 6.2 of RA 9006 and Section 9(a) of the
ensures “equal opportunity, time and space, including Resolution Restrict Free Speech and Free Expression
reasonable, equal rates” to candidates and political parties Excessively and Minimize Election Spending
during the campaign period. Arbitrarily
In capping the broadcast advertising time of candidates Section 6.2 of RA 9006 and Section 9(a) of the Resolution
and political parties, neither Congress nor the COMELEC are content-neutral “time” regulations which do not reach the
(under Section 6.2 of RA 9006 and Section 9(a) of the content of campaign speech but merely limit its cumulative
Resolution, respectively) supervised or regulated the broadcast “time” or length during the campaign period. Such
enjoyment and utilization of franchises of media outfits under content-neutral regulations are subjected to the intermediate,
Section 4, Article IX-C. Media firms continue to operate under not heightened, level of scrutiny under the four-
their franchises free of restrictions notwithstanding the pronged O’Brien test, originally crafted by the U.S. Supreme
imposition of these airtime caps. Section 6.2 of RA 9006 and Court and later adopted by this Court.6 Under O’Brien,
Section 9(a) of the Resolution do not approximate the rule Section 6.2 of RA 9006 and Section 9(a) of the Resolution will
barring media firms from “sell[ing] x x x print space or airtime pass constitutional muster “[1] [if they are] within the
for campaign or other political purposes except to the constitutional power of the Government; [2] if [they] further[]
Commission [on Elections],”4 a clear statutory an important or substantial governmental interest; [3] if the
implementation of Section 4.5 On the other hand, by governmental interest is unrelated to the suppression of free
regulating the length of broadcast advertising of candidates expression; and [4] if the incidental restriction on the x x x
and political parties, a propaganda activity with correlative freedoms [of speech, expression and press] is no greater than
financial effect, Section 6.2 of RA 9006 and Section 9(a) of the is essential to the furtherance of that interest.”7
Resolution enforce Section 2(7), Article IX-C. They are meant
to advance the government interest of minimizing election Section 6.2 of RA 9006 provides:
_______________
spending.
_______________
6 Considered as the “canonical” standard of review for content-neutral
regulations, the test is eponymously named after US v. O’Brien, 391 U.S. 367
other public utilities, media of communication or information, all grants,
(1968). This Court applied O’Brien in Osmeña v. COMELEC, id., and Social
special privileges, or concessions granted by the Government or any
Weather Station v. COMELEC, 409 Phil. 571; 357 SCRA 496 (2001). In
subdivision, agency, or instrumentality thereof, including any government-
contrast, content-based regulations are subjected to heightened scrutiny (for
owned or -controlled corporation or its subsidiary. Such supervision or
the reasons underlying such strict scrutiny and its application in Philippine
regulation shall aim to ensure equal opportunity, time, and space, and the
jurisprudence, see Osmeña v. COMELEC, id., at pp. 717-719).
right to reply, including reasonable, equal rates therefor, for public
7 Social Weather Station v. Commission on Elections, id., at
information campaigns and forums among candidates in connection with the
pp. 587-588; p. 504, citing US v. O’Brien, id., at p. 377.
objective of holding free, orderly, honest, peaceful, and credible elections.”
169
4 Section 11(b), Republic Act No. 6646, repealed by Section 14 of RA 9006.
5 Osmeña v. COMELEC, 351 Phil. 692, 708; 288 SCRA 447, 498 (1998). VOL. 734, SEPTEMBER 2, 2014 169
GMA Network, Inc. vs. Commission on Elections of radio advertising, whether airing on national, regional, or local
radio, whether by purchase or donation.
Equal Access to Media Time and Space.—x x x These provisions pass the first and third prongs of O’Brien.
xxxx Undoubtedly, it was within the power of Congress to enact
6.2. (a) Each bona fide candidate or registered political party Section 6.2 of RA 9006 and of COMELEC to adopt Section 9(a)
for a nationally elective office shall be entitled to not more than one of the Resolution to enforce Section 2(7), Article IX-C of the
hundred twenty (120) minutes of television advertisement and one Constitution. Nor is there any question that the government
hundred eighty (180) minutes of radio advertisement whether by interest of minimizing election spending under Section 2(7) of
purchase or donation. Article IX-C is unrelated to the suppression of free expression,
(b) Each bona fide candidate or registered political party for a
concerned as it is in the nonspeech government interest of
locally elective office shall be entitled to not more than sixty (60)
maximizing competition in the political arena. As explained
minutes of television advertisement and ninety (90) minutes of
radio advertisement whether by purchase or donation. below, however, the capping of campaign airtime by Section
xxxx 6.2 of RA 9006 and Section 9(a) of the Resolution advances the
Section 9(a) of the Resolution, implementing Section 6.2 for last state interest of minimizing election spending arbitrarily and
year’s election, provides: the incidental restriction on the freedoms of speech and
Requirements and/or Limitations on the Use of Election expression these provisions impose is greater than is essential
Propaganda through Mass Media.—All parties and bona to the furtherance of such state interest, thus failing the
fide candidates shall have equal access to media time and space for second and fourth prongs of O’Brien.
their election propaganda during the campaign period subject to the Under Section 6.2 of RA 9006, the ban in broadcast
following requirements and/or limitations: campaign kicks-in once the limits of the airtime caps are
a. Broadcast Election Propaganda
reached regardless of the amount of money actually spent by
The duration of airtime that a candidate, or party may use for
candidates or political parties. Section 9(a) of the Resolution
their broadcast advertisements or election propaganda shall be, as
follows: tightens the regulatory noose by reckoning the airtime caps
For Candidates/Registered Political parties for a National for the entire campaign period cumulatively.8 By divorcing the
_______________
Elective Position [—] [n]ot more than an aggregate total of one
hundred (120) minutes of television advertising, whether appearing 8 According to petitioner GMA, Inc., this leaves a candidate or political
on national, regional, or local, free or cable television, and one party only 27.3 seconds of campaign broadcast time per day (Decision, p. 156).
hundred eighty (180) minutes of radio advertising, whether airing Under the regulations issued by the COMELEC implementing Section 6.2 of
on national, regional, or local radio, whether by purchase or RA 9006 for the 2007 and 2010 elections, the caps were reckoned based on the
donation. length of advertising time logged by each candidate or political party at every
170 TV or radio station.
170 SUPREME COURT REPORTS ANNOTATED 171

GMA Network, Inc. vs. Commission on Elections VOL. 734, SEPTEMBER 2, 2014 171
GMA Network, Inc. vs. Commission on Elections
For Candidates/Registered Political parties for a Local Elective amount of campaign airtime logged by candidates and
Position [—] [n]ot more than an aggregate total of sixty (60) political parties during the campaign period from the amount
minutes of television advertising, whether appearing on national, of expenses they incur to do so, Section 6.2 of RA 9006 and
regional, or local, free or cable television, and ninety (90) minutes Section 9(a) of the Resolution operate under the assumption
that advertising rates in TV and radio are uniform, regardless Corporation’s mid-level local stations.12 For non-primetime
of the broadcast coverage and time. placement, the price difference is 92%.13

The fact of the matter is, advertising rates for each medium Substantially the same level of rate variance obtains in
vastly vary depending on the extent and time of broadcast. radio advertising. A 30-second campaign ad placed in
Even if the statutorily mandated discounts are factored,9 a 30- petitioner GMA, Inc.’s DZBB AM radio station for national
second campaign ad placed in petitioner GMA, Inc.’s national broadcast is, on average, 93% more expensive than a 30-
TV station GMA-7 on a weekday evening primetime slot will second campaign ad placed by another candidate or political
cost a candidate or political party 96% more than a 30-second party aired at GMA, Inc.’s AM radio stations in Puerto
campaign ad placed by another candidate or party in any of Princesa City (DYSP), Iloilo City (DYSI), and Davao City
GMA, Inc.’s provincial TV stations.10 If the ad is placed on a (DXGM).14 For petitioner ABS-CBN Corporation, a 30-second
weekend non-primetime slot (afternoon), the price variation campaign ad placed in its DZMM AM radio station for
dips slightly to 93%.11 The rates charged by petitioner ABS- national broadcast on a primetime slot (club rate) is 91% more
CBN Corporation reflect substantially the same price expensive than a 30-second campaign ad placed by another
variance. A 30-second campaign ad placed in its national TV candidate or political party aired at ABS-CBN Corporation’s
station ABS-CBN on a primetime slot will cost a candidate or AM radio stations in Cebu City and Davao City.15
political party 97% more than a 30-second campaign ad placed _______________
by another candidate or party in any of ABS-CBN
12 Based on petitioner ABS-CBN Corp.’s rate card for 2013
(undiscounted), a 30-second national primetime ad costs P824,374 while its
9 Under Section 11 of RA 9006 (“Rates for Political mid-level provincial rate (selected areas) for the same ad is P24,800 (with the
Propaganda.—During the election period, media outlets shall 30% statutory discount, the rates are P577,061.80 and P19,360, respectively).
The upper-level provincial rate is P38,500 (Cebu) while the lower-level rate is
charge registered political parties and bona fide candidates a P7,470 (selected areas).
discounted rate of thirty percent [30%] for television, twenty 13 With the national ad costing P312,264 (with 30% statutory discount,
percent [20%] for radio and ten per cent [10%] for print over P218,584.80) and the mid-level provincial rate constant.
the average rates charged during the first three quarters of 14 Based on petitioner GMA, Inc.’s rate card for 2013 (undiscounted),
DZBB’s rate is P70,000 while those for DYSP (Puerto Princesa), DYSI (Iloilo)
the calendar year preceding the elections.”) and DXGM (Davao) are P2,100, P5,000 and P6,900, respectively. With the
10 Based on petitioner GMA, Inc.’s rate card for 2013 statutory discount of 20%, the rates for DZBB, DYSP, DYSI and DXGM are
(undiscounted), a 30-second national primetime ad costs P56,000, P1,680, P4,000 and P5,520, respectively. If the rate (undiscounted)
P695,500 while its regional counterpart costs P27,500 (with for Cebu’s DYSS (P22,500) is taken into account, the average price variation
is 87%.
the 30% statutory discount, the rates are P487,000 and 15 Based on petitioner ABS-CBN Corp.’s rate card for 2013
P19,250, respectively). (undiscounted), DZMM’s rate is P67,666 (club rate, primetime) while rates for
11 With the national ad costing P425,500 and the regional Cebu City and Davao City are the same at P6,570. The rate (undiscounted) for
rate constant. its Palawan AM station is lower at P3,290, increasing the price difference with
the national primetime, club rate to 95%.
172
173
172 SUPREME COURT REPORTS ANNOTATED
VOL. 734, SEPTEMBER 2, 2014 173
GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections
The value-neutral capping system under Section 6.2 of RA
The nonuniform rates in broadcast advertising mean that 9006 and Section 9(a) of the Resolution also operates under
candidate A for a national position who opts to place campaign 174
ads only in strategic provincial TV and radio stations of the 174 SUPREME COURT REPORTS ANNOTATED
top two networks will have spent at least 90% less than GMA Network, Inc. vs. Commission on Elections
candidate B for the same position who places campaign ads in the false assumption that candidates at the national and local
national TV and radio stations of such networks for the same levels are subject to the same general campaign spending
amount of time as candidate A. Nevertheless, as Section 6.2 limits, thus the uniform airtime caps imposed for each
of RA 9006 and Section 9(a) of the Resolution do not take category of candidates. Under Batas Pambansa Blg. 881 (BP
broadcast rate variances into account, candidate A will have 881), as amended by Section 13 of Republic Act No. 7166,
no choice but to stop airing campaign ads once he reaches the however, candidates’ spending limits are computed based on
limits of the airtime caps even though, compared to candidate the size of the voting population, with the rates proportional
B, his expenses for the ad placements are drastically lower. to the size of a candidate’s constituency.16Because all local
The government interest of minimizing election spending is candidates under Section 6.2 of RA 9006 and Section 9(a) of
furthered only in the case of candidate B but not with the Resolution are allotted the same airtime, a candidate for
candidate A. On the other hand, the candidate A’s right to mayor in Catbalogan City (which had 54,459 registered voters
make known his candidacy and program of government to the in 2010) has the same 60 minutes of TV ad time and 90
voters — the heart of the freedoms of (political) speech and minutes of radio ad time as a candidate for mayor in Davao
(political) expression guaranteed by the Constitution — is City (which had 909,442 registered voters in 2010) even
unduly restricted even though, compared to candidate B, his though their spending limits are, under the 2010 census,
campaign expenses for airing ads are enormously lower. The P163,377 and P2,728,326, respectively (at P3 per registered
system of value-neutral airtime capping cuts deep into the voter). As ad rates in Davao-based radio and TV stations are
core of fundamental rights while advancing a state interest relatively low, it could happen that the Davao City mayoral
arbitrarily. candidate will have consumed her allotted campaign air time
The same excessive rights restrictions and arbitrary while keeping clear of the maximum spending limit, yet,
advancement of public policy unfold for candidates at the local under Section 6.2 of RA 9006 and Section 9(a) of the
level. Metro Manila, unlike the other provinces, is not covered Resolution she has to stop airing campaign ads.
by “local” TV or radio stations. To broadcast a campaign ad on _______________
TV or radio, a candidate for any local position in Metro Manila
16 Under Section 100 of Batas Pambansa Blg. 881 (BP 881), as amended
will have to pay the rates for a national broadcast. The by Section 13 of Republic Act No. 7166 which provides: “Authorized Expenses
dilemma faced by Metro Manila candidates to either (a) of Candidates and Political Parties.—The agreement amount that a candidate
inhibit from broadcasting their campaign ads to save money or registered political party may spend for election campaign shall be as
follows: (a) For candidates.—Ten pesos (P10.00) for President and Vice
or (b) spend large amounts of campaign funds to air ads President; and for other candidates Three Pesos (P3.00) for every voter
unduly restricts their expressive rights and at the same time currently registered in the constituency where he filed his certificate of
negates the government interest of minimizing campaign candidacy: Provided, That a candidate without any political party and without
spending. support from any political party may be allowed to spend Five Pesos (P5.00)
for every such voter; and (b) For political parties.—Five pesos (P5.00) for every
voter currently registered in the constituency or constituencies where it has candidates and P4.00 per registered voter for national
official candidates.”
candidates. Once the total monetary limits are reached, the
175
VOL. 734, SEPTEMBER 2, 2014 175 ban on broadcast advertising takes effect, regardless of the
amount of air time logged. This scheme grants to candidates
GMA Network, Inc. vs. Commission on Elections
and politi-
176
Section 6.2 of RA 9006 and Section 9(a) of the 176 SUPREME COURT REPORTS ANNOTATED
Resolution Not Reasonably Related to the State GMA Network, Inc. vs. Commission on Elections
Interest of Minimizing Election Spending
cal parties greater space for the exercise of communicative
Even if we subject Section 6.2 of RA 9006 and Section 9(a) freedoms while, at the same time, allows the state to
of the Resolution to the lowest level of scrutiny under the
uniformly flag profligate campaigns.
rational basis test, they still fail to withstand analysis. Rules
Accordingly, I vote to GRANT the petitions in part
survive this minimal level of scrutiny if the means drawn by and DECLARE Section 9(a) of COMELEC Resolution No.
Congress or administrative bodies are reasonably related to a 9615 dated 15 January 2013, as amended by Resolution No.
legitimate state interest. The government interest Section 6.2 9631 dated 1 February 2013, and Section 6.2 of Republic Act
of RA 9006 and Section 9(a) of the Resolution are meant to
No. 9006 UNCONSTITUTIONAL for being violative of
advance is the minimization of campaign spending. The Section 4 and Section 8 of Article III of the 1987 Constitution.
means Congress and the COMELEC adopted to do so was to
place uniform campaign air caps for national and local SEPARATE CONCURRING OPINION
candidates, without taking into account the amount of money
BRION, J.:
spent by candidates and political parties to air campaign ads.
I concur in the result. My reasons for this position
By ignoring the amount of broadcasting expenses incurred by are fully explained below.
candidates and political parties, Section 6.2 of RA 9006 and The Case
Section 9(a) of the Resolution lack any rational relation to the The ponencia struck down Commission on
state policy of minimizing election spending under Section Elections (Comelec)Resolution No. 9615, as amended by
2(7), Article IX-C of the Constitution. Their enforcement will
Comelec Resolution No. 9631. These resolutions changed the
only result in substantial variation in election spending basis of the computation of the allowable air time limits
among national and local candidates for airing campaign ads. within which candidates or registered political parties may
Legislative measures aimed at limiting campaign airtime
place their campaign advertisements on radio or television, as
to advance the state policy of minimizing campaign spending provided under Republic Act (RA) No. 9006 or the Fair
under Section 2(7), Article IX-C of the Constitution must Elections Act of 2001. The pertinent portion of this law,
necessarily be pegged to spending caps for campaign Section 6.2, provides:
broadcasting. Such caps, in turn, will depend on the size of the 6.2. (a) Each bona fide candidate or registered political party
voting population for each category of candidates (national or for a nationally elective office shall be entitled to not more than one
local), consistent with the existing method for capping general hundred twenty (120) minutes of television advertisement and one
campaign spending under BP 881, as amended. The monetary hundred eighty (180) minutes of radio advertisement whether by
limit must be set at say P2.00 per registered voter for local purchase or donation.
177
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(b) Each bona fide candidate or registered political party for a Second, RA No. 9006 on its face does not require that the
locally elective office shall be entitled to not more than sixty (60) maximum allowable airtime should be on an “aggregate total”
minutes of television advertisement and ninety (90) minutes of basis. This finds support from the Sponsorship Speech of
radio advertisement whether by purchase or donation.
Senator Raul Roco on RA No. 9006. Also, the fact that RA No.
In the 2004,1 2007 and 2010 elections, the Comelec 9006 repealed RA No. 6646’s (or the Electoral Reforms Law of
interpreted these provisions to mean that the specified 1987) provision (that prohibits radio broadcasting or
airtime limits apply on a “per (radio/tv) station” basis. For
television station from giving or donating airtime for
a national candidate, entitlement to airtime translated to
campaign purposes except through the Comelec) reinforces
television campaign time of 120 minutes the Comelec’s earlier and consistent interpretation that the
for every available television station and 120 minutes
airtime limits apply on a “per station” basis.
for every available radio station. Third, Comelec Resolution No. 9615 infringes on the
For the 2013 elections, the Comelec changed its people’s right to be duly informed about the candidates and
interpretation, this time interpreting the law in the manner the issues, citing Bantay Republic Act or BA-RA 7941 v.
it did in 2001.2 Instead of computing the airtime limits on a Commission on Elections.3
per station basis, the Comelec under the challenged Fourth, Comelec Resolution No. 9615 violates the
resolutions, would now compute the airtime limits on an candidates’ freedom of speech because it restricts their ability
“aggregate total basis.” This translated to very much
to reach out to a larger audience.
lesser airtime for campaign advertisements that Fifth, Comelec Resolution No. 9615 violates the people’s
candidates and registered political parties could place. right to suffrage.
According to the ponencia, the Comelec’s new Sixth, the lack of a prior notice and hearing is fatal to the
interpretation is legally flawed for the following reasons: validity of Comelec Resolution No. 9615. The Comelec should
First, the Comelec failed to come up with a reasonable
have given petitioners prior notice and opportunity for
basis and explanation for the interpretative change of the hearing before adopting Comelec Resolution No. 9615 because
airtime limits under RA No. 9006. The Comelec, through of the radical change it introduced. Citing Commissioner of
Chairman Sixto Brillantes, explained that the new Internal Revenue v. Court of Appeals,4 prior notice and
interpretation was prompted by the need to level the playing
hearing is required if an administrative issuance
field among the candidates. This explanation apparently “substantially adds to or increases the burden of those
simply assumed that the previous interpretation no longer governed.”
addressed the 2013 needs, although no supporting basis in _______________
evidence and reason was given to support this assumption.
_______________
3 551 Phil. 1; 523 SCRA 1 (2007).
1 See Comelec Minute Resolution No. 04-0113. 4 329 Phil. 987; 261 SCRA 236 (1996).
2 Comelec Resolution No. 6520. 179
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GMA Network, Inc. vs. Commission on Elections GMA Network, Inc. vs. Commission on Elections

Discussion On February 18, 2004, the Comelec adopted petitioner


A. Grave Abuse of Discretion Issue KBP’s proposal. Since then and until the 2010 elections, the
a. Due Process and Basic Fairness Comelec interpreted the equality-of-access thrust of the law
I agree with the ponencia that basic fairness demands to mean that a national candidate or a registered political
that after consistently adopting and using an interpretation party could avail of up to 120 minutes and 180 minutes
of a legal provision, any subsequent change in interpretation for each broadcast radio station and television’s airtime,
that the Comelec would adopt and that would seriously respectively, for campaign advertisements. This
impact on both the conduct and result of the elections should interpretation was only changed for the 2013 elections under
have reasonable basis and be adequately explained to the assailed Comelec Resolution No. 9615.
those directly affected. Under these facts, even common sense demands that the
The petitioner owners/operators of radio/television Comelec explain to the petitioners the justification for the
networks are directly affected by the Comelec’s new change, i.e., why the previous interpretation would no longer
interpretation since they normally sell their airtime to be in tune with the equality-of-access thrust of the law that
candidates and registered political parties who buy airtime to remains unchanged in all these elections. This is particularly
conduct their campaign and as part of their campaign true for the current petitioners who were the very same
strategy. With respect to the candidates and as the Comelec parties who actually and successfully prodded the Comelec to
very well knows, the effectiveness of their campaign strategy reconsider its 2001 interpretation.
spells the difference between winning and losing in Philippine As the ponencia observed, in the hearing conducted by the
elections. The Comelec’s knowledge of this basic fact limits the Comelec after the promulgation of Comelec Resolution No.
discretion that it otherwise would normally and broadly have 9615, the Comelec Chairman offered the petitioners no
as the constitutional body tasked with the enforcement and reasonable explanation; he only relied on the Comelec’s
administration of our election laws.5 “prerogative to amplify” under RA No. 9006 and on the
Interestingly, in 2001 (the year RA No. 9006 was enacted), blanket invocation of the need to level the playing field among
the Comelec initially interpreted the airtime limits under RA candidates.
No. 9006 to be applicable on an aggregate total basis in the While the Court has acknowledged the Comelec’s wide
manner the assailed Comelec Resolution No. 9615 now does. discretion in adopting means to carry out its mandate of
At the instance of petitioner Kapisanan ng Mga Brodkaster ensuring free, orderly, and honest elections, this discretion
ng Pilipinas (KBP), the Comelec (through its Election and cannot be unlimited and must necessarily be within the
Information Department Director) then held conferences to bounds of the law6under the prevailing rule of law regime in
discuss the present petitioners’ proposed changes. our country. The legal limitations include those imposed by
_______________ the fundamental law, among them, the right to due process
where governmental action has been substantively
5 Article IX-C, Section 2(1), 1987 Constitution.
180 unreasonable or its procedures and processes are
180 SUPREME COURT REPORTS ANNOTATED unduly harsh.
_______________
6 Tolentino v. COMELEC, 465 Phil. 385; 420 SCRA 438 (2004). 7 See Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667,
181 169834 and 171246, April 20, 2006, 488 SCRA 1, 72.
VOL. 734, SEPTEMBER 2, 2014 181 8 Supra note 4.
182
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GMA Network, Inc. vs. Commission on Elections
The Comelec’s failure to sufficiently explain the basis for
interests at stake have collectively given rise to the need to
the change of interpretation it decreed under Resolution No.
observe basic fairness.
9615, in my view, falls within this limitation. Even without
1. The Comelec’s powers
going into the niceties and intricacies of legal reasoning, basic
As an administrative agency, the powers and functions of
fairness7 demands that the Comelec provides a reasonable
the Comelec may be classified into quasi-legislative and
justification, considering particularly the Comelec’s own
quasi-judicial.
knowledge of the dynamics of campaign strategy and the
The quasi-judicial power of the Comelec embraces the
influence of the radio and television as medium of
power to resolve controversies arising from the enforcement
communication.
of election laws, and to be the sole judge of all pre-
b. Lack of prior notice and hearing
I similarly agree with the ponencia that the lack of proclamation controversies; and of all contests relating to the
elections, returns, and qualifications. In the exercise of quasi-
prior notice and hearing is fatal to the validity of Comelec
judicial power, the Comelec must necessarily ascertain the
Resolution No. 9615. Parenthetically, the need for prior notice
existence of facts, hold hearings to secure or confirm these
and hearing actually supports the conclusion that the
facts, weigh the presented evidence, and draw conclusions
Comelec’s discretion is not unbridled. Giving the petitioners
from them as basis for its action and exercise of discretion that
prior opportunity to be heard before adopting a new
is essentially judicial in character.9 When exercising this
interpretation would have allowed the Comelec to make a
power, due process requires that prior notice and hearing
reasonable evaluation of the merits and demerits of the 2004-
must be observed.10
2010 interpretation of airtime limits and the needs to satisfy
The remedy against an improvident exercise of the
the demands of the 2013 elections.
Comelec’s quasi-judicial power is provided under Article IX-
In my discussions below, I shall supplement the ponencia’s
A, Section 7,11 in relation with Article IX-C, Section 3 of the
observations (which cited the case Commissioner of Internal
Constitution12 and with Rule 64 of the Rules of Court.
Revenue v. Court of Appeals)8 that prior notice and hearing are _______________
required if an administrative issuance “substantially adds to
or increases the burden of those governed.” I do so based on 9 Bedol v. Commissions on Elections, G.R. No. 179830, December 3, 2009, 606
my own assessment that the validity or invalidity of the SCRA 554.
10 See Namil v. Commission on Elections, 460 Phil. 751; 414 SCRA 553
assailed Comelec Resolution essentially rises or falls on
(2003); and Sandoval v. Commission on Elections, 380 Phil. 375; 323 SCRA
the Comelec’s compliance with the legal concept of due 403 (2000).
process or, at the very least, the common notion of 11 This provision reads:
fairness. In the latter case, the prevailing circumstances and Section 7. Each Commission shall decide by a majority vote of all its
Members, any case or matter brought before it within sixty days from the date
the of its submission for decision or resolution. A case or matter is deemed
_______________
submitted for decision or resolution upon the filing of the last pleading, brief, 14 Republic v. Drugmaker’s Laboratories, Inc., G.R. No. 190837, March 5,
or memorandum required by the rules of the Commission or by the 2014, 718 SCRA 153, citing Commissioner of Internal Revenue v. Court of
183 Appeals, 329 Phil. 987, 1007; 261 SCRA 236, 246
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GMA Network, Inc. vs. Commission on Elections
On the other hand, the Comelec’s quasi-legislative
power, which it may exercise hand in hand with its power to A subset of legislative rules are interpretative rules that
administer and enforce election laws, refers to its power to are intended to interpret, clarify or explain existing statutory
issue rules and regulations to implement these election laws. regulations under which the administrative body operates.
In the exercise of quasi-legislative power, administrative law Their purpose or objective is merely to construe the
distinguishes between an administrative rule or regulation administered statute without regard to any particular person
(legislative rule), on the one hand, and an administrative or entity that may be covered by the law under construction
interpretation of a law whose enforcement is entrusted to an or interpretation.15 Understood along these lines, it becomes
administrative body (interpretative rule), on the other.13 easy to grasp that the requirements of prior notice and
Legislative rules are in the nature of subordinate hearing, unless expressly required by legislation or by the
legislation and, as this label connotes, are designed to rules, do not apply to them.16
implement a law or primary legislation by providing the
details of the law. They usually implement existing law, 2. The requirement of notice
imposing general, extra-statutory obligations pursuant to the and hearing in the exercise
authority properly delegated by Congress and reflect and of quasi-legislative power
effect a change in existing law or policy that affects individual a. Statutory Requirement for Notice and Hearing
rights and obligations.14 In earlier cases, the Court observed that the issuance of
_______________ rules and regulations in the exercise of an administrative
agency’s quasi-legislative or rule making power generally
Commission itself. Unless otherwise provided by this Constitution or by
does not require prior notice and hearing17 except if the law
law, any decision, order, or ruling of each Commission may be brought to the
_______________
Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
(1996), in turn citing Misamis Oriental Association of Coco Traders, Inc. v.
12 This provision reads:
Department of Finance Secretary, id., at p. 69; First National Bank of
Section 3. The Commission on Elections may sit En Banc or in two
Lexington, Tennessee v. Sanders, 946 F. 2d 1185 (1991); and Animal Legal
divisions, and shall promulgate its rules of procedure in order to expedite
Defense Fund v. Quigg and Verity, 932 F. 2d 920, 18 USPQ. 2d 1677 (1991).
disposition of election cases, including pre- proclamation controversies. All
15 Republic v. Drugmaker’s Laboratories, Inc., supra,
such election cases shall be heard and decided in division, provided that
citing Commissioner of Internal Revenue v. Court of Appeals, supra; and
motions for reconsideration of decisions shall be decided by the
Nachura, Antonio E. B., Outline Reviewer in Political Law, p. 416, (2009).
Commission En Banc.
16 See also Tañada v. Hon. Tuvera, 230 Phil. 528; 146 SCRA 446 (1986).
13 Victorias Milling Company, Inc. v. Social Security Commission, No. L-
17 Ruben Agpalo, Administrative Law, Law on Public Officers and
16704, March 17, 1962, 4 SCRA 627; Misamis Oriental Association of Coco
Election Law, 2005 ed., citing Phil. Communications Satellite Corp. v. Alcuaz,
Traders, Inc. v. Department of Finance Secretary, G.R. No. 108524, November
259 Phil. 707; 180 SCRA 218 (1989). See also Dagan, et al. v. Philippine Racing
10, 1994, 238 SCRA 63.
Commission, et al., 598 Phil. 406; 578 SCRA 585 (2009).
185
VOL. 734, SEPTEMBER 2, 2014 185 GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections rates imposed under a new law (that had yet to take effect
provides otherwise.18 The requirement for an opportunity when the memorandum circular was issued) without
to be heard under the exception is provided for under Book affording the cigarette manufacturer the benefit of any prior
VII, Chapter 2, Section 9 of Executive Order (EO) No. 292 notice and hearing.
(the Administrative Code of 1987). This provision reads: In ruling in the manufacturer’s favor, the Court imme-
Section 9. Public Participation.— diately assumed that the CIR was exercising its quasi-
(1) If not otherwise required by law, an agency shall, as far as legislative power when it issued the memorandum
practicable, publish or circulate notices of proposed rules and circular20 and quoted a portion of Misamis Oriental
afford interested parties the opportunity to submit their views prior Association of Coco Traders, Inc. v. Department of Finance
to the adoption of any rule. Secretary21 as follows:
A patent characteristic of this provision is its permissive x x x a legislative rule is in the nature of subordinate legislation,
language in requiring notice and the opportunity to be heard. designed to implement a primary legislation by providing the details
The non-mandatory nature of a prior hearing arises from the thereof. In the same way that laws must have the benefit of public
nature of the proceedings where quasi-legislative power is hearing, it is generally required that before a legislative rule is
exercised: the proceedings do not involve the determination adopted there must be hearing. x x x (italics in the original)
of past events or factsthat would otherwise have to be On the basis of this assumption and the Misamis
ascertained as basis of an agency’s action and discretion. On Oriental ruling, the Court held that while an interpretative
the contrary, the proceedings are intended to govern future rule does not require prior notice and hearing (since “it gives
conduct. Accordingly, the requirement of prior notice and no real consequence more than what the law itself has already
hearing is not indispensable for the validity of the exercise of prescribed”), “an administrative rule x x x that substantially
the power.19 adds to or increases the burden of those governed [requires] the
It is in this light that the pronouncement in CIR case that agency to accord at least to those directly affected a chance to
the ponencia cited, should be understood. be heard, and thereafter to be duly informed, before that new
In CIR case, the CIR issued a memorandum circular that issuance is given the force and effect of law.”
classified certain brands of cigarettes of a particular While the Court’s quoted dictum in the case is sound, the
manufacturerunder a particular category. The classification facts of the case however reveal that the CIR was not actually
resulted in subjecting the cigarette manufacturer to higher wearing its quasi-legislative hat when it made the disputed
tax classification; it was in fact exercising its quasi-judicial power
_______________ _______________

18 Central Bank of the Philippines v. Cloribel, 150-A Phil. 86; 44 SCRA 20 The Court said: “Like any other government agency, however, the CIR
307 (1972). may not disregard legal requirements or applicable principles in the exercise
19 Corona v. United Harbor Pilots Association of the Philippines, 347 Phil. of its quasi-legislative powers” and then proceeded to “distinguish between two
333, 342; 283 SCRA 31, 41 (1997); Philippine Consumers Foundation, Inc. v. kinds of administrative issuances — a legislative rule and an interpretative
Secretary of Education, Culture and Sports, 237 Phil. 606; 153 SCRA 622 rule.”
(1987). 21 Supra note 13.
186 187
186 SUPREME COURT REPORTS ANNOTATED VOL. 734, SEPTEMBER 2, 2014 187
GMA Network, Inc. vs. Commission on Elections 188 SUPREME COURT REPORTS ANNOTATED
when it issued the memorandum circular.22 As discussed GMA Network, Inc. vs. Commission on Elections
elsewhere in this Opinion, prior notice and hearing was in fact sions on their campaign activities and strategies, and
indispensable. ultimately on their ability to win in the elections. These are
This apparent disconnect, however, is rendered academic serious considerations that make prior notice and hearing in
by the directory requirement of prior notice and hearing under the present case more than “practicable.”
EO No. 292 quoted above: when an agency issues a legislative Still more important than these individual
rule, the issue of whether compliance with the notice and considerations is the perceived adverse effect, whether
hearing requirement was “practicable” under the true or not, of the reduction of the airtime limits under
circumstances might depend on the extent of the burden or Comelec Resolution No. 9615 on the electorate.
the adverse effect that the new legislative rule imposes on We should not also lose sight of the Comelec’s equally noble
those who were not previously heard. Effectively, this is the objective of leveling the playing field between and among
rule that assumes materiality in the case, not the misdirected candidates, which objective is itself constitutionally
ruling in the cited CIR case. recognized.24In addition, as one Comelec Commissioner
In the present case, the requirement of prior notice and remarked,25 the restrictive interpretation was intended to
opportunity to be heard proceeds from the nature of Comelec encourage candidates to comply with an equally
Resolution No. 9615 as a legislative rule23 whose new relevant statutory regulation on campaign finance.26
provision on airtime limits directly impacts on the
petitioners as a distinct group among the several actors At the center of these competing considerations that
in the electoral process. directly impact on the election system and in the electoral
On the one hand, the revenues that the petitioners may process as a whole is the Comelec. Given its constitutional
potentially lose under the Comelec’s “restrictive” mandate to enforce and administer all election laws and
interpretation indeed have adverse effects on the petitioners’ regulations with the objective of holding free, orderly, honest,
operations. On the other hand, substantially limiting the peaceful, and credible elections,27these considerations, in my
allowable airtime advertisements of candidates would have view, compulsorily required the Comelec to give the
serious repercus- petitioners and all those concerned reasonable opportunity for
_______________ discourse and reasonable basis and explanation for its
22 See Separate Opinion of Justice Josue Belosillo in Commissioner of
conclusion.
Internal Revenue v. Court of Appeals, supra note 4. In other words, while the petitioners do not have any
23 While the Comelec under resolution 9615 merely “interpreted” (or more absolutely demandable right to notice and hearing in the
accurately, re-interpreted) the same provision of RA 9006, one should not Comelec’s promulgation of a legislative rule, the weight and
confuse resolution 9615 simply as an interpretative rule since every election
is distinct from the previous ones and different guidelines in order to ensure seriousness of the considerations underlying the change in im-
that the rules are updated to respond to existing circumstances. (Arroyo v. _______________
Department of Justice, G.R. No. 199082, September 18, 2012, 681 SCRA 181.)
Hence, in issuing resolution 9615, the Comelec was not simply “interpreting” 24 Section 4, Article IX-C, 1987 Constitution.
the elections laws but is actually exercising its power of subordinate 25 See http://tcdn05.abs-cbnnews.com/nation/06/13/13/sans-tro-9-senate-
legislation. bets-buhay-breached-ads-cap.
188
26 See Sections 100 and 101 of Batas Pambansa Blg. 881, as amended by we consider that under RA No. 9006, the Comelec is expressly
Section 13 of RA No. 7166.
empowered to “amplify” the guidelines provided in the law,
27 Section 4, Article IX-C, 1987 Constitution.
189 among them, the provision on airtime limits. As will be dis-
VOL. 734, SEPTEMBER 2, 2014 189 190
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GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections
plementing the airtime limit rule, required a more
circumspect and sensitive exercise of discretion by the cussed later in this Opinion, the Comelec’s express power to
Comelec, in fact, the duty to be fair that opens the door to due “amplify” supports the conclusion I reached.
process considerations. The change touched on very Based on these considerations, the ponencia could very
basic individual, societal and even constitutional values well have ended further consideration of other issues as the
and considerations so that the Comelec’s failure to notify violation of due process already serves as ample basis to
and hear all the concerned parties amounted to a due process support the conclusion to invalidate Comelec Resolution No.
violation amounting to grave abuse in the exercise of its 9615. Instead, the ponencia proceeded to consider other
discretion in interpreting the laws and rules it implements. constitutional grounds that, in my view, were not then
While the Comelec admittedly conducted a appropriate for resolution.
hearing after promulgating Comelec Resolution No. 9615, B. Judicial Power and Lis Mota
this belated remedy does not at all cure the resolution’s When questions of constitutional significance are raised,
invalidity. the Court can exercise its power of judicial review only if the
The requirement of prior notice and hearing is following requisites are present: (1) the existence of an actual
independently meant to reinforce the requirement of and appropriate case; (2) the existence of personal and
reasonable basis and adequate explanation of the Comelec’s substantial interest on the part of the party raising the
action as part of the petitioners’ due process rights. To state constitutional question; (3) recourse to judicial review is made
the obvious, in the election setting that Comelec Resolution at the earliest opportunity; and (4) the constitutional question
No. 9615 governed, time is of the essence so that the lack of is the lis mota of the case.28
due process might have irremediably affected the concerned The thrust of my discussion focuses on the last requisite.
parties by the time the post-promulgation hearing was called. Lis mota literally means “the cause of the suit or action.”
Additionally and more importantly, concluding that a post- This last requisite of judicial review is simply an offshoot of
promulgation hearing would suffice in Comelec Resolution the presumption of validity accorded to executive and
No. 9615 setting would have signified the lack of limitation, legislative acts of our coequal branches and of the
even temporarily, on the Comelec’s otherwise broad independent constitutional bodies. Ultimately, it is rooted in
discretion. In the fine balancing that elections require, such the principle of separation of powers.
remedial actions would not suffice. Given this presumption of validity, the petitioner who
As specifically applied to the realities of the present case, claims otherwise carries the initial burden of showing that the
the requirement of prior notice and hearing is an opportunity case cannot be resolved unless the constitutional question he
for boththe petitioners and the Comelec to support their raised is determined by the Court.29 From the Court’s per-
_______________
respective positions on the proper interpretation of the
airtime limits under RA No. 9006. This is especially true when 28 General v. Urro, G.R. No. 191560, March 29, 2011, 646 SCRA 567.
29 Id. 30 Supra note 6.
191 192
VOL. 734, SEPTEMBER 2, 2014 191 192 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections GMA Network, Inc. vs. Commission on Elections
spective, it must avoid resolving constitutional issues unless tional decision-making is the exercise of judicial restraint.31
their resolution is absolutely necessary and clearly _______________
unavoidable.
31 In Demetria v. Alba, this Court, through Justice Marcelo Fernan cited
By holding that the Comelec must have reasonable basis the “seven pillars” of limitations of the power of judicial review, enunciated by
for changing their interpretation of the airtime limits under US Supreme Court Justice Brandeis in Ashwander v. TVA as follows:
RA No. 9006 and that, impliedly its absence in the present 1. The Court will not pass upon the constitutionality of legislatidi ko on in
a friendly, non-adversary proceeding, declining because to decide such
case constitutes a violation of the petitioners’ right to due
questions ‘is legitimate only in the last resort, and as a necessity in the
process, the ponencia in effect recognized the Comelec’s duty determination of real, earnest and vital controversy between individuals. It
under the circumstances to provide for a reasonable basis for never was the thought that, by means of a friendly suit, a party beaten in the
its action, as well as its competence to adequately explain legislature could transfer to the courts an inquiry as to the constitutionality of
the legislative act.’
them as the constitutional body tasked to enforce and 2. The Court will not ‘anticipate a question of constitutional law in advance
administer all elections laws and regulations. This of the necessity of deciding it.’ . . . ‘It is not the habit of the Court to decide
recognition is consistent with the Court’s similar recognition questions of a constitutional nature unless absolutely necessary to a decision
that the Comelec possesses wide latitude of discretion in of the case.’
3. The Court will not ‘formulate a rule of constitutional law broader than
adopting means to carry out its mandate of ensuring free, is required by the precise facts to which it is to be applied.’
orderly, and honest elections, but subject to the limitation 4. The Court will not pass upon a constitutional question although properly
that the means so adopted are not illegal or do not constitute presented by the record, if there is also present some other ground upon which
grave abuse of discretion.30 the case may be disposed of. This rule has found most varied application. Thus,
if a case can be decided on either of two grounds, one involving a constitutional
Given this recognition and in light of the nullity of Comelec question, the other a question of statutory construction or general law, the
Resolution No. 9615, the Court, for its part, should also Court will decide only the latter. Appeals from the highest court of a state
recognize that it should not preempt the Comelec from later challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an
on establishing or attempting to establish the bases for a new
independent state ground.
interpretation that is not precluded on other constitutional 5. The Court will not pass upon the validity of a statute upon complaint of
grounds. The Comelec possesses ample authority to so act one who fails to show that he is injured by its operation. Among the many
under the provision that airtime limits, among others, “may applications of this rule, none is more striking than the denial of the right of
challenge to one who lacks a personal or property right. Thus, the challenge
be amplified on by the Comelec.” by a public official interested only in the performance of his official duty will
I choose to part with the ponencia at this point as I not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal
believe that with the due process and fairness grounds firmly of a suit brought by a citizen who sought to have the Nineteenth Amendment
established, this Court should refrain from touching on other declared unconstitutional. In Massachusetts v. Mellon, the
192
constitutional grounds, particularly on a matter as weighty as
192 SUPREME COURT REPORTS ANNOTATED
the one before us, unless we can adequately explain and
support our dispositions. The oft-repeated dictum in constitu- GMA Network, Inc. vs. Commission on Elections
_______________
The Court will not or should not pass upon a constitutional RA No. 9006 provides:
question although properly presented by the record, if there is Section 6. Equal Access to Media Time and Space.—All
also present some other ground upon which the case may be registered parties and bona fide candidates shall have equal access
disposed of. This, to my mind, is the dictum most particularly to media time and space. The following guidelines may be
fit for the current legal situation before us, as I will explain amplified on by the COMELEC.
xxxx
below.
6.2. (a) Each bona fide candidate or registered political
C. The ponencia’s bases for nullifying
party for a nationally elective office shall be entitled to not
Comelec Resolution No. 9615 more than one hundred twenty (120) minutes of television
Based on its second to fifth grounds, the ponencia suggests advertisement and one hundred eighty (180) minutes of
that even if the Comelec came up with a reasonable and radio advertisement whether by purchase or donation.
adequate explanation for its new interpretation of the airtime (b) Each bona fide candidate or registered political
limits under RA No. 9006, the Comelec resolution is doomed party for a locally elective office shall be entitled to not
_______________ more than sixty (60) minutes of television advertisement
and ninety (90) minutes of radio advertisement whether by
challenge of the federal Maternity Act was not entertained although made purchase or donation.
by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the
For this purpose, the COMELEC shall require any broadcast
instance of one who has availed himself of its benefits. station or entity to submit to the COMELEC a copy of its broadcast
7. When the validity of an act of the Congress is drawn in question, and logs and certificates of performance for the review and verification
even if a serious doubt of constitutionality is raised, it is a cardinal principle of the frequency, date, time and duration of advertisements
that this Court will first ascertain whether a construction of the statute is broadcast for any candidate or political party.
fairly possible by which the question may be avoided. (citations omitted). 6.3. All mass media entities shall furnish the COMELEC with
The foregoing “pillars” of limitation of judicial review, summarized
a copy of all contracts for advertising, promoting or opposing any
in Ashwander v. TVA from different decisions of the United States Supreme
Court, can be encapsulated into the following categories: political party or the candidacy of any person for public office within
1. that there be absolute necessity of deciding a case; five (5) days after its signing. In every case, it shall be signed by the
2. that rules of constitutional law shall be formulated only as required by donor, the
the facts of the case; 195
3. that judgment may not be sustained on some other ground; VOL. 734, SEPTEMBER 2, 2014 195
4. that there be actual injury sustained by the party by reason of the
operation of the statute;
GMA Network, Inc. vs. Commission on Elections
5. that the parties are not in estoppel; candidate concerned or by the duly authorized representative of the
6. that the Court upholds the presumption of constitutionality. political party.
194 xxxx
194 SUPREME COURT REPORTS ANNOTATED In all instances, the COMELEC shall supervise the use and
GMA Network, Inc. vs. Commission on Elections employment of press, radio and television facilities insofar
to fail because, first, it does not find support under RA No. or the placement of political advertisements is concerned to
9006 (the statutory reason); and, second, it violates several ensure that candidates are given equal opportunities under
equal circumstances to make known their qualifications and
constitutional rights (the constitutional reason).
their stand on public issues within the limits set forth in the
I disagree with these cited grounds. Omnibus Election Code and Republic Act No. 7166 on election
1. Statutory reason spending.
I raise three observations with respect to the ponencia’s computation must not be based on a ‘per day’ basis,”
statutory reason. completely ignoring the additional “per station” qualifier that
First, the ponencia has not explained the implication of is also no longer found in the present law.
the Comelec’s power to “amplify” under Section 6 of RA No. These three considerations, in my view, collectively point
9006 in relation with Comelec Resolution No. 9615. to the inadequacy of the ponencia’s reasons in striking down
In light of the Comelec’s power to “amplify,” I cannot Comelec Resolution No. 9615.
support the ponencia’s simplistic statement that “the law, on i. Statutory Validity of a Regulation
its face, does not justify a conclusion that the allowable The Comelec’s power to “amplify” on the airtime limits
airtime should be based on the totality of possible broadcast would have been the key in determining whether the Comelec
in all television or radio stations.” In fact, even a superficial overstepped its limitations in the exercise of its quasi-
reading of RA No. 9006 reveals that the law is silent on the legislative power. For a legislative rule to be valid, all that is
basis of computing the allowable airtime limits. required is that the regulation should be germane (i.e.,
The ponencia should have at the very least explained the appropriate and relevant) to the objects and purposes of the
law’s silence in relation with the Comelec’s power to amplify. law, and that the regulation should not contradict, but
Contrary to the ponencia’s observation, nothing is evident should conform with, the standards prescribed by the law.32
from the Sponsorship Speech of Senator Raul Roco on RA No. RA No. 9006 simply provides that “each bona
9006 (that the ponencia cited) to support the conclusion that fide [national] candidate or registered political party” is
the Comelec’s interpretation is unwarranted under RA No. “entitled to not more than one hundred twenty (120) minutes
9006. of television
Second, the fact that RA No. 9006 repealed Section 11(b) _______________
[the political advertisement ban] of RA No. 6646 has no
32 Orceo v. Commission on Elections, G.R. No. 190779, March 26, 2010,
bearing on the issue of the correct interpretation of the 616 SCRA 684.
airtime limits under RA No. 9006. The thrust of RA No. 9006 197
196 VOL. 734, SEPTEMBER 2, 2014 197
196 SUPREME COURT REPORTS ANNOTATED GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections advertisement and one hundred eighty (180) minutes of radio
involves a qualified, not an absolute, right to politically advertisement.”
advertise, whether airtime limits are based on a per station A very basic rule in statutory construction is that words
or an aggregate total basis. (which make up a sentence) should be construed in their
Third, the House and Senate bills that eventually became ordinary and usual meaning33 and that legislative record are
RA No. 9006 originally contained the phrase “per day per powerless to vary the terms of the statute when the wordings
station” as the basis for the computation of the allowed of the statute is otherwise clear.34
airtime limits. According to the Comelec, the dropping of this In the present case, the word “each” (defined as everyone
phrase in the law reveals the intent of Congress to compute in a group)35 pertains to the candidate and registered
the airtime limits on an aggregate total or per candidate basis. political parties themselves; the law then proceeds to
In rejecting the Comelec’s argument, the ponencia, again, define the limits of entitlement of “each” to radio and
oddly stated that this change in language “meant that the television advertisement to a certain number of minutes.
The provision’s distinct and unambiguous wording shows If only the ponencia considered Congress’ express intent to
that the allowable number of minutes for advertisement in grant the Comelec the power to “amplify” on Section 6.2 of RA
radio and television refers to “each” of the candidates and No. 9006, then it would not have been blinded by its
registered political parties. Under the presently plain and apprehensions that the Comelec’s resolution would
clear wordings of the law, the allowable number of “undermine” and “frustrate” “political exercise as an
minutes does not pertain to the radio and television interactive process.”
station themselves. Accordingly, in promulgating Comelec More than anyone else perhaps, Congress knows that
Resolution No. 9615, it cannot be said that the Comelec “went weighty considerations underlie the regulation of the airtime
beyond its legal mandate” because the Comelec’s limits of candidates and of registered political parties. As
interpretation finds plain textual support from the law itself. earlier discussed, these considerations include the revenues
Pursuant to Section 4, Article IX-C of the 1987 that the petitioners may potentially and directly lose under
Constitution, Congress enacted RA No. 9006 and declared as the Comelec’s “restrictive” interpretation, and the Comelec
a matter of state principle that during the election period the resolution’s indirect effect on the petitioners’ freedom of the
State may supervise and regulate “the enjoyment or press; the serious repercussions of restrictive airtime limits
utilization of all franchises or permits for the operation of on candidates’ campaign strategy and their ability to win in
media of com- the elections; the perceived adverse (and/or beneficial) effect,
_______________ whether true or not, of the reduction of the airtime limits
under the Comelec resolution on the electorate since the
33 Romualdez v. Sandiganbayan, G.R. No. 152259, July 29, 2004, 435
SCRA 371. elections are considered the highest form of exercise of
34 See Southern Cross Cement Corporation v. Philippine Cement democracy; the noble objective of leveling the playing field
Manufacturers Corporation, G.R. No. 158540, July 8, 2004, 434 SCRA 65. In between and among candidates, which objective is itself
the present case, the ponencia does not even disclose the terms of the
constitution-
legislative intent which Senator Cayetano has called the Court’s attention to.
_______________
35 www.yourdictionary.com/each.
198
36 Section 2, RA No. 9006.
198 SUPREME COURT REPORTS ANNOTATED 199
GMA Network, Inc. vs. Commission on Elections VOL. 734, SEPTEMBER 2, 2014 199
munication or information.” The avowed purpose is to GMA Network, Inc. vs. Commission on Elections
“guarantee or ensure equal opportunity for public service, ally recognized;37 and the equally important and relevant
including access to media time and space for public state objective of regulating campaign finance.38
information campaigns and fora among candidates.”36 After Since the Comelec is the body tasked by the Constitution
Congress enacted RA No. 9006, which by its terms textually with the enforcement and supervision of all election related
support Comelec Resolution No. 9615, it cannot be said that laws with the power to supervise or regulate the enjoyment of
the resolution is not germane to the purpose of the law or that franchises or permits for the operation of media of
it is inconsistent with the law itself. communication or information, Congress found the Comelec
to be the competent body to determine, within the limits
ii. The Power to Amplify provided by Congress, the more appropriate regulation in an
ever changing political landscape.
Reading RA No. 9006 and all the above With due respect, I observe that the ponencia has not fully
considerations together, it is not difficult to grasp that explained how Comelec Resolution No. 9615 violates the
the 180 and 120 minute limitations people’s right to be duly informed about the candidates and
for each candidate under the law should be issues, and the people’s right to suffrage. Bantay Republic Act
understood as the maximum statutory threshold for or BA-RA 7941 v. Commission on Elections,39 which
campaign advertisement. This is by the express provision the ponencia cited, is inapplicable because that case involves
of RA No. 9006. The Comelec’s on a “per station” an absolute refusal by the Comelec to divulge the
interpretation (effective from 2004 until 2010), on the names of nominees in the party list election. In the
other hand, may be considered as another maximum present case, the Comelec is not prohibiting the candidates
limit for campaign advertisement, based on from placing their campaign advertisements on the air but is
the Comelec’s authority to “amplify.” This Comelec simply limiting the quantity of the airtime limits they may
ruling, standing as presented, should be valid for as long as it use. As previously discussed, the basis for its action and
does not exceed the statutory ceiling on a per station basis. interpretation is textually found in RA No. 9006 itself.
This interpretation, in my view, takes into account all the
competing considerations that the Comelec, as the proper ii. Freedom of speech
body, has the primary authority to judiciously weigh and a. Candidates and political parties
consider. The ponencia also claims that Comelec Resolution No.
To put this examination of Comelec Resolution No. 9615 in 9615 violates the candidates’ freedom of speech because it
its proper context, however, I hark back to my previous restricts their ability to reach out to a larger audience. While
statement on judicial restraint: find no clear and urgent freedom of speech is indeed a constitutionally protected right,
necessity now to resolve the constitutional issues discussed in the ponencia failed to consider that the Constitution itself
the ponencia, more especially given the manner that these expressly provides for a limitation to the enjoyment of
issues were approached. I only discuss the constitutional this right during the election period. Article IX-C, Section
issues to 4 of the Constitution reads:
_______________ _______________

37 Supra note 24. 39 Supra note 3.


38 Supra note 26. 201
200 VOL. 734, SEPTEMBER 2, 2014 201
200 SUPREME COURT REPORTS ANNOTATED GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections
point out my concurrence and divergence from Section 4. The Commission may, during the election period,
the ponencia. What we should hold, and I support supervise or regulate the enjoyment or utilization of all franchises
the ponencia on this point, is that Comelec Resolution No. or permits for the operation of transportation and other public
9615 now stands nullified on due process grounds. utilities, media of communication or information, all grants, special
2. Constitutional Reason privileges, or concessions granted by the Government or any
i. Right to Information subdivision, agency, or instrumentality thereof, including any
government-owned or -controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal x x x Withal, the rights of free speech and free press are not
opportunity, time, and space, and the right to reply, including unlimited rights for they are not the only important and relevant
reasonable, equal rates therefor, for public information campaigns values even in the most democratic of polities. In our own society,
and forums among candidates in connection with the objective of equality of opportunity to proffer oneself for public office, without
holding free, orderly, honest, peaceful, and credible elections. regard to the level of financial resources that one may have at one’s
In National Press Club v. Commission on Elections,40 the disposal, is clearly an important value. One of the basic state
petitioner raised arguments similar to the constitutional policies given constitutional rank by Article II, Section 26 of the
reasons now used by the ponencia against the Constitution is the egalitarian demand that “the State shall
constitutionality of Section 11(b) of RA No. 6646. This
41 guarantee equal access to opportunities for public service and
prohibit political dynasties as may be defined by law.”
provision prohibits
_______________ The technical effect of Article IX(C)(4) of the Constitution may
be seen to be that no presumption of invalidity arises in respect of
40 G.R. No. 102653, March 5, 1992, 207 SCRA 1. exercises of supervisory or regulatory authority on the part of the
41 Section 11. Prohibited Forms of Election Propaganda.—In Comelec for the purpose of securing equal opportunity among
addition to the forms of election propaganda prohibited under Section 85 candidates for political office, although such supervision or
of Batas Pambansa Blg. 881, it shall be unlawful: regulation may result in some limitation of the rights of free speech
(b) for any newspaper, radio broadcasting or television station, or other
and free press.
mass media, or any person making use of the mass media to sell or to give free
_______________
of charge print space or air time for campaign or other political purposes
except to the Commission as provided under Sections 90 and 92 of Batas
sion among all candidates within the area in which the newspaper is
Pambansa Blg. 881. Any mass media columnist, commentator, announcement
circulated.
or personality who is a candidate for any elective public office shall take a xxxx
leave of absence from his work as such during the campaign period. Sec. 92. Comelec time.—The Commission shall procure radio and television
Sections 90 and 92 of BP Blg. 881 pertinently reads: time to be known as “Comelec Time” which shall be allocated
Sec. 90. Comelec space.—The Commission shall procure space in at least equally and impartially among the candidates within the area of coverage of all
one newspaper of general circulation in every province or city: Provided, radio and television stations. For this purpose, the franchise of all radio
however, That in the absence of said newspaper, publication shall be done in broadcasting and television stations are hereby amended so as to provide radio or
any other magazine or periodical in said province or city, which shall be known television time, free of charge, during the period of the campaign. (Emphasis
as “Comelec Space” wherein candidates can announce their candidacy. Said supplied)
space shall be allocated, free of charge, equally and impartially by the 203
Commis- VOL. 734, SEPTEMBER 2, 2014 203
202
GMA Network, Inc. vs. Commission on Elections
202 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections xxxx
the sale or donation of airtime to political candidates but Put in slightly different terms, there appears no present
directs the Comelec’s procurement and allocation of airtime to necessity to fall back upon basic principles relating to the police
the candidates (Comelec time). power of the State and the requisites for constitutionally valid
exercise of that power. The essential question is whether or
Ruling against the claim that Section 11(b) of R.A. No. 6646 not the assailed legislative or administrative provisions
violates the freedom of speech, the Court in National Press constitute a permissible exercise of the power of
Clubsaid: supervision or regulation of the operations of
communication and information enterprises during an
election period, or whether such act has gone beyond In other words, the Court found Section 11(b) of R.A. No.
permissible supervision or regulation of media operations 6646 to be a content-neutral regulation and, thus, only needs
so as to constitute unconstitutional repression of freedom of a substantial government interest to support it.
speech and freedom of the press. The Court considers that Governmental interest is substantial if it passes the test
Section 11(b) has not gone outside the permissible bounds of
formulated in the United States v. O’ Brien:44 a government
supervision or regulation of media operations during election
regulation is sufficiently justified —
periods.
xxxx (i) if it is within the constitutional power of the
Section 11(b) does, of course, limit the right of free speech and of Government;
access to mass media of the candidates themselves. The (ii) if it furthers an important or substantial governmental
limitation, however, bears a clear and reasonable interest;
connection with the constitutional objective set out in (iii) if the governmental interest is unrelated to the
Article IX(C)(4) and Article II(26) of the Constitution. For it suppression of free expression; and
is precisely in the unlimited purchase of print space and radio and (iv) if the incident restriction on alleged First Amendment
television time that the resources of the financially affluent freedoms is no greater than is essential to the furtherance of
candidates are likely to make a crucial difference. Here lies the core that interest.45
problem of equalization of the situations of the candidates with
Accordingly, in determining whether a regulation violates
deep pockets and the candidates with shallow or empty pockets that
freedom of speech, one must identify its nature and, concomi-
Article IX(C)(4) of the Constitution and Section 11(b) seek to
_______________
address. That the statutory mechanism which Section 11(b) brings
into operation is designed and may be expected to bring about or 42 351 Phil. 692; 288 SCRA 447 (1998).
promote equal opportunity, and equal time and space, for political 43 Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956,
candidates to inform all and sundry about themselves, cannot be March 31, 1992, 207 SCRA 712; Sanidad v. Commission on Elections, G.R. No.
gainsaid. 90878, January 29, 1990, 181 SCRA 529; and Mutuc v. COMELEC, No. L-
32717, November 26, 1970, 36 SCRA 228.
Six years later, another challenge against Section 11(b) of 44 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680 (1968).
R.A. No. 6646 was brought before the Court in Osmeña v. 45 See also Social Weather Station v. Commission on Elections, G.R. No.
204 147571, May 5, 2001, 357 SCRA 496.
204 SUPREME COURT REPORTS ANNOTATED 205
GMA Network, Inc. vs. Commission on Elections VOL. 734, SEPTEMBER 2, 2014 205
Comelec.42 The Court maintained its National Press GMA Network, Inc. vs. Commission on Elections
Club ruling and held that unlike the other cases where the tantly, the kind of interest that the government must have to
Court struck down the law or the Comelec regulation,43 the support it.
restriction of speech under Section 11(b) of RA No. 6646 is Under this type of constitutional analysis, a first basic step
merely incidental and is no more than necessary to achieve its for the ponencia was to establish the nature of Comelec
purpose of promoting equality of opportunity in the use of Resolution No. 9615 as a content-based restriction on the
mass media for political advertising. The restriction is limited candidates’ freedom of speech before jumping to the
both as to time and as to scope. conclusion that restrictions on “political speech” must be
“justified by a compelling state interest.” Without a clear
established finding that the resolution is a content-based
restriction, the Court would leave the public guessing on our b. Radio and television stations
basis in reaching a conclusion different from that we reached The Constitution’s approval of “[r]estricting the speech of
in Osmeña. some in order to enhance the relative voice of others” neither
In question form, are we saying that the allocation of a applies to the candidates nor to the medium in which this
maximum of 180 minutes and 120 minutes of radio and speech may be made, i.e., to television and the radio stations
television advertisements, respectively, to each national themselves. During elections, the candidates and these
candidate (under Comelec Resolution No. 9615) unduly stations go hand-in-hand, bombarding the public with all
restricts freedom of speech, while the arrangement where the kinds of election related information one can imagine.
Comelec shall exclusively procure “Comelec time” free of Under Comelec Resolution No. 9615, the “restrictions” on
charge46 and allocate it equally and impartially among the the airtime limits of candidates and registered political
candidates within the area of coverage of all radio and parties only indirectly affect the radio and broadcast stations’
television stations does not? more specific freedom of the press, as will be discussed
If the Court answers in the affirmative, then the Court below.49 If at all, it is their potential revenues that
must expressly and carefully draw the line. In that event, I are directly affected by the Comelec resolution. But even this
expressly reserve my right to modify this Opinion on the effect does not give them any cause to complain.
ground that Comelec Resolution No. 9615 is a content-neutral _______________
restriction.
48 In Osmeña v. Comelec, the Court observed:
The absence of the required constitutional analysis is made Do those who endorse the view that government may not restrict the
worse by the ponencia’s citation of Buckley v. Valeo,47 a US speech of some in order to enhance the relative voice of others also think that
case which declared the statutory limits on campaign the campaign expenditure limitation found in our election laws is
unconstitutional? How about the principle of one person, one vote, is this not
expenditure unconstitutional for violating freedom of speech based on the political equality of voters? Voting after all is speech. We speak
on the theory that speech is money. Osmeña already put into of it as the voice of the people — even of God. The notion that the
serious question the applicability of the US Supreme Court’s government may restrict the speech of some in order to enhance the
reason- relative voice of others may be foreign to the American
_______________ Constitution. It is not to the Philippine Constitution, being in fact an
animating principle of that document.
46 Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. 49 Section 4, Article III, 1987 Constitution.
Commission on Elections, 352 Phil. 153; 289 SCRA 337 (1998). 207
47 424 U.S. 1; 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). VOL. 734, SEPTEMBER 2, 2014 207
206 GMA Network, Inc. vs. Commission on Elections
206 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections In Telecommunications and Broadcast Attorneys of the
ing in this case48 in our jurisdiction given the presence of Philippines, Inc. v. Commission on Elections,50 the Court ruled
Section 4, Article IX-C in the 1987 Constitution and our own that radio and television stations may be compelled to grant
unique political and social culture. Thus, to me, free airtime to the Comelec for the purpose of allocating and
citing Buckley to back up a myopic view of freedom of speech distributing these equally among candidates since under the
is seriously disturbing. Constitution, their franchises may be amended for the
“common good” — in this case, the public will benefit because The foregoing discussions simply reinforce my view that in
they will be fully informed of the issues of the election. enacting RA No. 9006, Congress has allowed the Comelec
In the present case, will we have a different result because considerable latitude in determining, within statutory limits,
the Comelec effectively reduces the maximum number of whether a strict or liberal application of the airtime limits in
minutes each radio and television may sell or donate to a a particular election period is more appropriate. Unless the
candidate or a registered political party? I do not think so. Comelec has no reasonable basis and adequate explanation
It may be argued that while the quantity of campaign for its action and unless the parties directly affected are not
advertisements is reduced, this reduction inversely and given opportunity to be heard on this action — as in the
proportionately increases the radio and television present case — the Court should withhold the exercise of its
stations’ own time — the freedom of the press at its very reviewing power.
basic51 — to actively perform their duty to assist in the In these lights, I submit that, unless adequately explained,
functions of public information and education.52 Thus, the resolution of the substantive constitutional issues should
contrary to the ponencia’s very broad statements, the press is be left for future consideration as they are not absolutely
not in any way “silenced” or “muffled under Comelec necessary to the resolution of this case.
Resolution No. 9615”; what the resolution affects is merely the CONCURRING OPINION
duration of allowable of radio and television advertisements LEONEN, J.:
by the candidates and registered political parties. In the same I concur and vote to grant the petitions.
manner, under Comelec Resolution No. 9615, the radio and At issue in this case is the Commission on Elections’
television networks themselves are not hindered in pursuing (COMELEC’s) more restrictive interpretation of Section 6.2 of
their respective public information campaigns and other Republic Act No. 9006 or the Fair Election Act resulting in
election-related public service activity. I incidentally find further diminution of the duration of television and radio
the Pentagon Papers case, which the ponencia found advertising that candidates may have during the 2013
pertinent to quote, to be simply inapplicable. elections. This section provides:
Given these observations, the ponencia’s conclusion that Sec. 6. Equal Access to Media Time and Space.—All registered
Comelec Resolution No. 9615 is violative of the right to suf- parties and bona fide candidates shall have equal access to media
_______________ time and space. The following guidelines may be amplified on by
the COMELEC:
50 Supra note 46. ....
51 See Section 24, Article II and Section 10, Article XVI of the 1987 209
Constitution. VOL. 734, SEPTEMBER 2, 2014 209
52 See Section 4, RA No. 7252.
208 GMA Network, Inc. vs. Commission on Elections
208 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections 6.2
a. Each bona fide candidate or registered political party for a
frage cannot but equally stand on very shaky constitutional
nationally elective office shall be entitled to not more than one
ground. hundred twenty (120) minutes of television advertisement and one
D. Closing hundred eighty (180) minutes of radio advertisement whether by
purchase or donation.
b. Each bona fide candidate or registered political party for a hobbled by the presumption of invalidity and should be
locally elective office shall be entitled to not more than sixty (60) greeted with furrowed brows.”8 This is the only situation
minutes of television advertisement and ninety (90) minutes of where we veer away from our presumption of
radio advertisement whether by purchase or donation. constitutionality.9
For this purpose, the COMELEC shall require any broadcast
In the context of elections, this court declared as
station or entity to submit to the COMELEC a copy of its broadcast
unconstitutional the acts of the Commission on Elections in
logs and certificates of performance for the review and verification
of the frequency, date, time and duration of advertisements prohibit-
_______________
broadcast for any candidate or political party.
Prior restraint is defined as the “official governmental 4 Eastern Broadcasting Corporation v. Dans, Jr., 222 Phil. 151; 137 SCRA
restrictions on the press or other forms of expression in 628 (1985) [Per J. Gutierrez, Jr., En Banc].
advance of actual publication or dissemination.”1 Prior 5 Id.
6 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893, 928; 259 SCRA 529,
restraints of speech are generally presumptively 553 (1996) [Per J. Puno, En Banc], citing Near v. Minnesota, 283 U.S. 697
unconstitutional. The only instances when this is not the case (1931); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); New York Times v.
are in pornography,2 false and misleading United States, 403 U.S. 713 (1971); See also Social Weather Station v.
advertisement, advocacy of imminent
3 COMELEC, 409 Phil. 571, 584-585; 357 SCRA 496, 510 (2001)
_______________ [Per J. Mendoza, En Banc], citing New York Times v. United States, 403 U.S.
713, 714, 29 L.Ed. 2d 822, 824 (1971).
1 Chavez v. Gonzales, 569 Phil. 155, 203; 545 SCRA 441, 491 (2008) 7 Supra.
8 Id., at p. 928; pp. 545-546.
[Per CJ. Puno, En Banc].
9 See Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of
2 Soriano v. Laguardia, 605 Phil. 43; 587 SCRA 79 (2009) [Per J. Velasco,
Budget and Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 387
Jr., En Banc]; Pita v. Court of Appeals, 258-A Phil. 134; 178 SCRA 36 (1989)
[Per J. Sarmiento, En Banc]; Gonzalez v. Katigbak, 222 Phil. 225; 137 SCRA [Per J.Mendoza, En Banc], citing Drilon v. Lim, G.R. No. 112497, August 4,
1994, 235 SCRA 135, 140 [Per J. Cruz, En Banc]; See also Osmeña v.
717 (1985) [Per CJ. Fernando, En Banc].
COMELEC, 351 Phil. 692; 288 SCRA 447 (1998) [Per J. Mendoza, En
3 Chavez v. Gonzales, supra; Pharmaceutical and Health Care Association
Banc]; National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992,
of the Philippines v. Health Secretary Francisco T. Duque III, 561 Phil. 386;
207 SCRA 1 [Per J. Feliciano, En Banc]; Angara v. Electoral Commission, 63
535 SCRA 265 (2007) [Per J., Austria-Martinez, En Banc].
Phil. 139 (1936) [Per J. Laurel, En Banc].
210
211
210 SUPREME COURT REPORTS ANNOTATED
VOL. 734, SEPTEMBER 2, 2014 211
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GMA Network, Inc. vs. Commission on Elections
lawless action,4 and danger to national security.5
ing the playing of taped jingles,10 disallowing newspaper
columnists to express their opinion on a plebiscite,11 and
Section 6 of the Fair Election Act is a form of prior
limiting the publication of election surveys.12
restraint. While it does not totally prohibit speech, it has the
effect of limitations in terms of the candidates’ and political
However, this presumption, though heavy, is not
parties’ desired time duration and frequency.
insurmountable.
When an act of government is in prior restraint of speech,
Generally, there are very clear constitutionally defined and
government carries a heavy burden of
compelling interests to limit the speech of candidates and
unconstitutionality. In Iglesia ni Cristo v. Court of
6

Appeals,7 this court said that “any act that restrains speech is
political parties. Article IX-C, Section 4 of the Constitution and time for political advertisement provided in Section 11(b)
provides: of Republic Act No. 6646.14 This court recognized that though
Section 4. The Commission may, during the election period, freedom of speech is a preferred right in our constitutional
supervise or regulate the enjoyment or utilization of all franchises hierarchy, it is not unlimited.15There are other constitutional
or permits for the operation of transportation and other public _______________
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any 13 Supra note 9.
subdivision, agency, or instrumentality thereof, including any 14 Rep. Act No. 6646, Sec. 11 provides:
Sec. 11. Prohibited Forms of Election Propaganda.—In addition to the
government-owned or -controlled corporation or its subsidiary.
forms of election propaganda prohibited under Section 85 of Batas Pambansa
Such supervision or regulation shall aim to ensure equal Blg. 881, it shall be unlawful:
opportunity, time, and space, and the right to reply, ....
including reasonable, equal rates therefor, for public b. for any newspaper, radio broadcasting or television station, or other
information campaigns and forums among candidates in mass media, or any person making use of the mass media to sell or to give free
connection with the objective of holding free orderly honest, of charge print space or airtime for campaign or other political purposes except
to the Commission as provided under Sections 90 and 92 of Batas Pambansa
peaceful, and credible elections. (Emphasis supplied)
Blg. 881. Any mass media columnist, commentator, announcer or personality
In addition, the Commission on Elections has been given who is a candidate for any elective public office shall take a leave of absence
the competence to minimize election spending in Section 2(7) from his work as such during the campaign period.
of Article IX-C of the Constitution: 15 “It seems a modest proposition that the provision of the Bill of Rights
_______________ which enshrines freedom of speech, freedom of expression and freedom of the
press (Article III[4], Constitution) has to be taken in conjunction with Article
10 Mutuc v. COMELEC, 146 Phil. 798; 36 SCRA 228 (1970) IX(C)(4) which may be seen to be a special provision applicable during a
[Per J. Fernando, En Banc], cited as prior restraint in Osmeña v. specific limited period — i.e., “during the election period.” It is difficult to
COMELEC, id., at p. 707; p. 467. overemphasize the special importance of the rights of freedom of speech and
11 Sanidad v. COMELEC, 260 Phil. 565; 181 SCRA 529 (1990) freedom of the
[Per J.Medialdea, En Banc], cited as prior restraint in Osmeña v. 213
COMELEC, id., at p. 718; p. 467. VOL. 734, SEPTEMBER 2, 2014 213
12 Social Weather Station v. COMELEC, supra note 6. GMA Network, Inc. vs. Commission on Elections
212
values that should also be considered including the
212 SUPREME COURT REPORTS ANNOTATED
equalization of opportunities for candidates.16 This idea was
GMA Network, Inc. vs. Commission on Elections
echoed in Osmeña v. COMELEC.17 This court found that the
“restriction on speech is only incidental, and it is no more
Section 2. The Commission on Elections shall exercise the
than is necessary to achieve its purpose of promoting equality
following powers and functions:
....
of opportu-
_______________
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda press in a democratic polity, in particular when they relate to the purity and
materials shall be posted, and to prevent and penalize all forms of integrity of the electoral process itself, the process by which the people identify
election frauds, offenses, malpractices, and nuisance candidates. those who shall have governance over them. Thus, it is frequently said that
In National Press Club v. COMELEC,13 this court these rights are accorded a preferred status in our constitutional hierarchy.
Withal, the rights of free speech and free press are not unlimited rights for
considered the prohibition on the sale and donation of space they are not the only important and relevant values even in the most
democratic of polities. In our own society, equality of opportunity to proffer We thus have a situation in which an act of Congress was found by this
oneself for public office, without regard to the level of financial resources that Court to be valid so that those opposed to the statute resorted to the legislative
one may have at one’s disposal, is clearly an important value. One of the basic department. The latter reconsidered the question but after doing so
state policies given constitutional rank by Article II, Section 26 of the apparently found no reason for amending the statute and therefore did not
Constitution is the egalitarian demand that ‘the State shall guarantee equal pass any of the bills filed to amend or repeal the statute. Must this Court now
access to opportunities for public service and prohibit political dynasties as grant what Congress denied to them? The legislative silence here certainly
may be defined by law.’” National Press Club v. COMELEC, supra note 9 at p. bespeak of more than inaction.” Osmeña v. COMELEC, id., at pp. 716-717; p.
9, with a voting of 11-3. 476.
16 Const., Art. IX-C, Sec. 4 provides: 20 Rep. Act No. 9006 (2001).
Section 4. The Commission may, during the election period, supervise 21 Id., Sec. 14 provides:
or regulate the enjoyment or utilization of all franchises or permits for the Section 14. Repealing Clause.—Sections 67 and 85 of the Omnibus
operation of transportation and other public utilities, media of communication Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic
or information, all grants, special privileges, or concessions granted by the Act No. 6646 are hereby repealed. As a consequence, the first proviso in the
Government or any subdivision, agency, or instrumentality thereof, including third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective.
any government-owned or -controlled corporation or its subsidiary. Such All laws, presidential decrees, executive orders, rules and regulations, or any
supervision or regulation shall aim to ensure equal opportunity, time, part thereof inconsistent with the provisions of this Act are hereby repealed
and space, and the right to reply, including reasonable, equal rates or modified or amended accordingly.
therefor, for public information campaigns and forums among 215
candidates in connection with the objective of holding free, orderly, VOL. 734, SEPTEMBER 2, 2014 215
honest, peaceful, and credible elections. (Emphasis supplied)
17 Supra note 9. GMA Network, Inc. vs. Commission on Elections
214 political parties while maintaining equality in terms of
214 SUPREME COURT REPORTS ANNOTATED duration of exposure.22
GMA Network, Inc. vs. Commission on Elections
nity in the use of mass media for political Section 6 of the Fair Election Act
advertising.”18 In Osmeña, this court noted the silence of the is a form of prior restraint
legislature in amending Section 11(b) of Republic Act No.
6646.19 It is recognized that Section 6 of the Fair Election Act does
Thus, in 2001, the Fair Election Act20 was promulgated, not completely prohibit speech. However, the provision
repealing the challenged provisions in National Press effectively limits speech in terms of time duration and
Club and Osmeña. Congress determined that the old law was frequency.
not effective in giving voice to the people.21 It shifted state Admittedly, the present wording of Section 6 of the Fair
policy by liberalizing the granting of time and space to Election Act does not clearly imply whether the one hundred
candidates and twenty (120) minutes of television advertisement and the one
_______________ hundred eighty (180) minutes of radio advertisement allotted
to each candidate or registered political party is for each
18 Id., at p. 711; p. 470, with a voting of 11-4.
network or is an aggregate time for all such advertisements,
19 “The fact is that efforts have been made to secure the amendment or
even repeal of §11(b) of R.A. No. 6646. No less than five bills were filed in the whether paid or donated, during the entire election period.
Senate in the last session of Congress for this purpose, but they all failed of However, during the 200723 and the 201024elections, the
passage. Petitioners claim it was because Congress adjourned without acting _______________
on them. But that is just the point. Congress obviously did not see it fit to act
on the bills before it adjourned. 22 Id., Sec. 6.2(b), which provides:
Sec. 6. Equal Access to Media Time and Space.—All registered parties
and bona fide candidates shall have equal access to media time and space. The
following guidelines may be amplified on by the COMELEC:
...
6.2b. Each bona fide candidate or registered political party for a locally
elective office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation.
23 COMELEC Resolution No. 7767 (2006), Sec. 13(1), as amended by
COMELEC Resolution No. 7836 (2007).
_______________
24 COMELEC Resolution No. 8758 (2010), Sec. 11(a), provides that for
candidates and registered political parties for a national elective position, the
in COMELEC Resolution No. 9615 (2013) questioned here, with the
limitations were “One hundred twenty (120) minutes in television or cable
phrases “for all television and cable television networks, or all radio stations”
television and one hundred eighty (180) minutes in radio, for all television or
and “per station” not appearing.
cable television networks, or all radio stations whether by purchase or
donation, wherever located, per station.” The phrase “aggregate total” was 217
introduced VOL. 734, SEPTEMBER 2, 2014 217
216 GMA Network, Inc. vs. Commission on Elections
216 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections

Commission on Elections allowed candidates and


registered political parties to advertise as much as 120
minutes of television advertisement and 180 minutes of radio
advertisement per station.
For the 2013 elections, however, respondent Commission
on Elections, without hearing, issued Resolution No. 9615,
Section 9(a) which now interprets the 120/180 minute airtime In cases where two or more candidates or parties whose names,
to be on a “total aggregate basis.” This section provides: initials, images, brands, logos, insignias, color motifs, symbols, or
SECTION 9. Requirements and/or Limitations on the forms of graphical representations are displayed, exhibited, used,
Use of Election Propaganda through Mass Media.—All or mentioned together in the broadcast election propaganda or
parties and bona fidecandidates shall have equal access to media advertisements, the length of time during which they appear or are
time and space for their election propaganda during the campaign being mentioned or promoted will be counted against the airtime
period subject to the following requirements and/or limitations: limits allotted for the said candidates or parties and the cost of the
a. Broadcast Election Propaganda: said advertisement will likewise be considered as their
The duration of airtime that a candidate, or party may use for expenditures, regardless of whoever paid for the advertisements or
their broadcast advertisements or election propaganda shall be, as to whom the said advertisements were donated.
follows: Appearance or guesting by a candidate on any bona
fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the
presentation of the subject or subjects covered by the news
documentary, or on-the-spot coverage of bona fide news events,
including but not limited to events sanctioned by the Commission and candidates were afforded equal opportunities to promote their
on Elections, political conventions, and similar activities, shall not candidacy, the media entity shall give prior
219
be deemed to be broadcast election propaganda within the meaning
of this provision. To determine whether the appearance or guesting VOL. 734, SEPTEMBER 2, 2014 219
in a program is bona fide, the broadcast stations or entities must GMA Network, Inc. vs. Commission on Elections
show that: (1) prior approval of the Commission was secured; and
(2) candidates and parties were afforded equal opportunities to In addition to the television and radio networks
promote their candidacy. Nothing in the foregoing sentence shall be represented in the various petitions, a candidate for the
218
senatorial elections, Alan Peter Cayetano, also filed an
218 SUPREME COURT REPORTS ANNOTATED
intervention.27
GMA Network, Inc. vs. Commission on Elections Whether the airtime in television and radio spots of
construed as relieving broadcasters, in connection with the candidates and registered political parties may be regulated
presentation of newscasts, news interviews, news documentaries,
is not an issue in this case. Indeed, the Constitution clearly
and on-the-spot coverage of news events, from the obligation
imposed upon them under Sections 10 and 14 of these Rules.
allows this for purposes of providing equal opportunity to all
Provided, further, that a copy of the broadcast advertisement candidates.28 The issue is also not whether Congress, in
contract be furnished to the Commission, thru the Education and promulgating Section 6 of the Fair Election Act, committed
Information Department, within five (5) days from contract signing. grave abuse
The issuance caused petitioners to send their respective _______________
letters to respondent to clarify and/or protest against the new notice to the COMELEC, through the appropriate Regional
regulations. It was only then that respondent Commission on Election Director (RED), or in the case of the National Capital Region
Elections held a public hearing.25 Respondent then issued (NCR), the Education and Information Department (EID). If such
Resolution No. 9631 amending certain provisions of prior notice is not feasible or practicable, the notice shall be sent
within twenty-four (24) hours from the first broadcast or
Resolution No. 9615, Section 9(a), without touching on the publication. Nothing in the foregoing sentence shall be construed as
“total aggregate” interpretation of Section 6 of the Fair relieving broadcasters, in connection with the presentation of newscasts, news
Election Act.26 interviews, news documentaries, and on-the-spot coverage of news events,
_______________ from the obligation imposed upon them under Sections 10 and 14 of these
Rules.” (Emphasis in the original)
25 Respondent COMELEC held a public hearing on January 31, 2013. 27 In G.R. No. 205357, intervenor assails Section 9(a) of Resolution No.
26 COMELEC Resolution No. 9631, par. 5, amended COMELEC 9615, which changed the interpretation of the 120/180-minute rule from “per
Resolution No. 9615, Sec. 9(a), to wit: station” to “total aggregate” basis.
5. The third (3rd) paragraph of Section 9(a) on the “Requirements 28 Const., Art. IX-C, Sec. 4 provides:
and/or Limitations on the Use of Election Propaganda through Mass Section 4. The Commission may, during the election period, supervise
Media” is revised and amended to read: or regulate the enjoyment or utilization of all franchises or permits for the
“Appearance or guesting by a candidate on any bona fide newscast, bona operation of transportation and other public utilities, media of communication
fide news interview, bona fide news documentary, if the appearance of the or information, all grants, special privileges, or concessions granted by the
candidate is incidental to the presentation of the subject or subjects covered Government or any subdivision, agency, or instrumentality thereof, including
by the news documentary, or on-the-spot coverage of bona fide news events, any government-owned or -controlled corporation or its subsidiary. Such
including but not limited to events sanctioned by the Commission on Elections, supervision or regulation shall aim to ensure equal opportunity, time, and
political conventions, and similar activities, shall not be deemed to be space, and the right to reply, including reasonable, equal rates therefor,
broadcast election propaganda within the meaning of this provision. For for public information campaigns and forums among candidates in connection
purposes of monitoring by the COMELEC and ensuring that parties
with the objective of holding free, orderly, honest, peaceful, and credible spending.29 During the January 31, 2013 public hearing,
elections. (Emphasis supplied)
COMELEC Chairman Brillantes said:
220
_______________
220 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections 29 Const., Art. IX-C, Sec. 2(7).
of discretion in determining a cap of 120 minutes advertising 221
for television and 180 minutes for radio. It is within the VOL. 734, SEPTEMBER 2, 2014 221
legislature’s domain to determine the amount of advertising GMA Network, Inc. vs. Commission on Elections
sufficient to balance the need to provide information to voters
and educate the public on the one hand, and to cause the Yes, but the very essence of the Constitutional provision as well
setting of an affordable price to most candidates that would as the provision of 9006 is actually to level the playing field. That
should be the paramount consideration. If we allow everybody to
reduce their expenditures on the other. We are not asked to
make use of all their time and all radio time and TV time then there
decide in these cases whether these actual time limitations
will be practically unlimited use of the mass media. . . .30
hurdle the heavy burden of unconstitutionality that attends On a cursory look, it will seem as if a reduction in the
to any prior limitations on speech. length of airtime allowable per candidate will translate to a
reduction in a candidate’s election spending. For example,
Rather, petitioners and the intervenor raise constitutional under the old regulation of giving 120 minutes “per network,”
objections to a second order of restriction: that the it would mean that if the candidate wanted to broadcast on
interpretation earlier allowed by the Commission on two (2) television networks, the candidate could purchase a
Elections was suddenly, arbitrarily, and capriciously
total of 240 minutes. The total campaign expenditure for
reduced by adopting the “total aggregate” method. television advertisements would be 240 minutes multiplied by
While the Commission on Elections does have the the rate for television advertisements per minute, say,
competence to interpret Section 6, it must do so without P500,000.00. The candidate would have to spend a total of
running afoul of the fundamental rights enshrined in our P120 million for 240 minutes of television advertisements.
Constitution, especially of the guarantee of freedom of Under the new regulation of giving 120 minutes to the
expression and the right to suffrage. Not only must the candidate in an “aggregate total,” the candidate would have
Commission on Elections have the competence, it must also to distribute the 120 minutes between the two (2) networks.
be cognizant of our doctrines in relation to any kind of prior The 120 minutes multiplied by P500,000.00 is only P60
restraint.
million. The reduction in expenditure is obvious under this
It has failed to discharge this burden. example.
A more restrictive interpretation of Section 6 will However, the previous example is a simplistic view starkly
not necessarily meet the Commission on Elections’ different from our economic realities. This assumes that the
expected economic benefits regulation would not affect the prices charged by the
The Commission on Elections hinges the shift in the networks. A more realistic economic possibility is that the
interpretation of Section 6 of the Fair Election Act on its restriction in airtime allotment of candidates will increase the
constitutional power to recommend to prices of television and radio spots. This can happen because
Congress effective measures to minimize election the limitation in the airtime placed on each candidate will
increase his or her willingness to pay for television spots at 31 “The Philippines probably presents the most diverse media picture in
the region, with a wide variety of broadcasters, both radio and television,
any price. This will be the perfect opportunity for television operating both nationally and locally. At the same time, the leading media
networks to hike up their prices. For instance, these networks houses are very commercialised, with ownership concentrated mainly in the
can increase their usual rates of P500,000.00/minute to hands of large companies or family businesses. There is also burgeoning and
P1,000,000.00/minute. The candidate will take the airtime at essentially unregulated radio market where “block timers” purchase time to
_______________ espouse their views, which has been blamed for the growing lack of public trust
in the media.” See T. Mendel, Audiovisual media policy, regulation and
30 Main opinion, p. 135. independence in Southeast Asia<http://www.opensocietyfoundations.
222 org/sites/default/files/audiovisual-policy-20100212.pdf> (visited September 1,
2014).
222 SUPREME COURT REPORTS ANNOTATED 223
GMA Network, Inc. vs. Commission on Elections VOL. 734, SEPTEMBER 2, 2014 223
this rate because of the inevitable need for the campaign to be GMA Network, Inc. vs. Commission on Elections
visible to the public eye. At this rate, it will cost a candidate dictate the price, which it can logically set at a higher price to
P120 million to air 120 minutes. This is the same price to be translate to more profits. This is true in any setting especially
paid had it been under the old regulation; hence, the in industries with high barriers to entry and where there are
candidate’s election spending will not be minimized. In fact, it few participants with a high degree of market dominance.
will even increase the cost per unit of airtime. Reducing the airtime simply results in a reduction of speech
Ideally, television and radio stations should bid and and not a reduction of expenses.
compete for a candidate’s or a political party’s airtime Resolution No. 9615 may result in local community
allocation, so that instead of networks dictating artificially television and radio networks not being chosen by candidates
high prices for airtime (which price will be high as television running for national offices. Hence, advertisement by those
and radio stations are profit-driven), the market will running for national office will generally be tailored for the
determine for itself the price. The market for airtime national audience. This new aggregate time may, therefore,
allocation expands, and a buyer’s market emerges with low mean that local issues which national candidates should also
prices for airtime allocation. This situation assumes that in address may not be the subject of wide-ranging discussions.
the market for airtime allocation, television and radio Candidates’ expenses are still limited by existing
networks are the same in terms of audience coverage and regulations that peg total allowable expenditures based on the
facilities. number of votes. Even with aggregate airtime limits being
What Resolution No. 9615 does not take into consideration allowed on a per station basis, the limits on expenditures
is that television and radio networks are not similarly remain the same. In other words, the limits in candidate
situated. The industry structure consists of network expenses are already set and are independent of whether
giants31 with tremendous bargaining powers that dwarf local aggregate time is total airtime or per station.
community networks. Thus, a candidate with only a total Each candidate decides what media they will avail to allow
aggregate of 120/180 minutes of airtime allocation will choose for efficiency, i.e., the most impact with the broadest audience
a national network with greater audience coverage to reach and with the least cost. All candidate’s limits will be the same.
more members of the electorate. Consequently, the big Limiting airtime to only a total of 120/180 minutes per
networks can candidate or political party will most likely only succeed in
_______________
caricaturing debate, enriching only the more powerful has the prerogative, will never be enough to discharge its
companies in the media sector and making it more prohibitive burden of proving the constitutionality of its regulations
for less powerful candidates to get their messages across. limiting the freedom of speech.
There is no showing from respondent Commission on Election regulations are not always content-neutral
Elections of any study that the “total aggregate basis” regulations, and even if they were, they do not necessarily
interpretation will indeed minimize election spending. It did carry a mantle of immunity from free speech scrutiny. The
not show that this would better serve the objective of assisting question always is whether the regulations are narrowly
the poorer candidates. The relationship between the tailored so as to meet a significant governmental interest and
regulation and constitutional objective must be more than so that there
mere speculation. Here, the explanation respondent _______________
Commission on Elections gave is that it has the power to
32 Main opinion, pp. 133-134.
regulate. As COMELEC 225
224
VOL. 734, SEPTEMBER 2, 2014 225
224 SUPREME COURT REPORTS ANNOTATED
GMA Network, Inc. vs. Commission on Elections
GMA Network, Inc. vs. Commission on Elections
is a lesser risk of excluding ideas for a public dialogue.33 The
Chairman Brillantes said during the January 31, 2013 public scrutiny for regulations which restrict speech during elections
hearing: should be greater considering that these exercises
No, the change is not there, the right to amplify is with the substantiate the important right to suffrage. Reducing
Commission on Elections. Nobody can encroach in our right to airtime to extremely low levels reduces information to slogans
amplify. Now, if in 2010 the Commission felt that per station and sound bites which may impoverish public dialogue. We
or per network is the rule then that is the prerogative of the know that lacking the enlightenment that comes with
Commission then they could amplify it to expand it. If the
information and analysis makes the electorate’s role to exact
current Commission feels that 120 is enough for the
accountability from elected public officers a sham. More
particular medium like TV and 180 for radio, that is our
information requires more space and airtime equally
prerogative. How can you encroach and what is
available to all candidates. The problem in this case is that
unconstitutional about it?32 (Emphasis supplied) the Commission on Elections does not seem to have the
We emphasize that where a governmental act has the effect necessary basis to justify the balance it wanted to strike with
of preventing speech before it is uttered, it is the burden of the imposition of the aggregate time limits.
government and not of the speaker to justify the restriction in Just because it is called electoral reform does not
terms which are clear to this court. Article III, Section 4 of the necessarily make it so.
Constitution which provides for freedom of expression The standard of analysis for prior restraints on speech is
occupies such high levels of protection that its further well-known to all legal practitioners especially to those that
restriction cannot be left to mere speculation. may have crafted the new regulations. Good intentions are
Contrary to COMELEC Chairman Brillantes’ statement, welcome but may not be enough if the effect would be to
this court will step in and review the Commission on compromise our fundamental freedoms. It is this court’s duty
Elections’ right to amplify if it infringes on people’s to perform the roles delegated to it by the sovereign people. In
fundamental rights. What the Commission “feels,” even if it a proper case invoking this court’s powers of judicial review,
it should sometimes result in more mature reflection by those Notes.—The concept of privileged communication is
who do not benefit from its decisions. The Commission on implicit in the constitutionally protected freedom of the press,
Elections does not have a monopoly of the desire for genuine which would be threatened when criminal suits are
electoral reform without compromising fundamental rights. unscrupulously leveled by persons wishing to silence the
Our people cannot be cast as their epigones. media on account of unfounded claims of inaccuracies in news
_______________ reports. (Yambot vs. Tuquero, 646 SCRA 249 [2011])
The essence of due process is simply an opportunity to be
33 Chavez v. Gonzales, 569 Phil. 155, 205; 545 SCRA 441, 499 (2008) [Per
CJ.Puno, En Banc]; See Ward v. Rock Against Racism, 491 U.S. 781 (1989), heard or, as applied to administrative proceedings, an
quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 opportunity to explain one’s side or to seek a reconsideration
(1984); See alsoTurner Broad. System, Inc. v. Federal Communications of the action or ruling complained of. (Baguio Central
Commission, 512 U.S. 622, 642 (1994); City of Ladue v. Gilleo, 512 U.S. 43, 54-
University vs. Gallente, 711 SCRA254 [2013])
59 (1994).
226 ——o0o——
226 SUPREME COURT REPORTS ANNOTATED © Copyright 2018 Central Book Supply, Inc. All rights reserved.

GMA Network, Inc. vs. Commission on Elections

Fundamental rights are very serious matters. The core of


their existence is not always threatened through the crude
brazen acts of tyrants. Rather, it can also be threatened by
policies that are well-intentioned but may not have the
desired effect in reality.
We cannot do justice to hard-won fundamental rights
simply on the basis of a regulator’s intuition. When speech
and prior restraints are involved, it must always be
supplemented by rigorous analysis and reasoned evidence
already available for judicial review.
Thus, I vote to PARTIALLY GRANT the petitions. CASES REPORTED
Section 9(a) of Resolution No. 9615 is unconstitutional and is,
therefore, NULLand VOID. This has the effect of reinstating SUPREME COURT REPORTS ANNOTATED
the interpretation of the Commission on Elections with
respect to the airtime limits in Section 6 of the Fair Elections ____________________
Act. I vote to DENY the constitutional challenge to Sections
7(d) and 14 of COMELEC Resolution 9615, as amended by G.R. No. 205728. January 21, 2015.*
Resolution 9631.
Petitions partially granted, Section 9(a) of Resolution No. THE DIOCESE OF BACOLOD, represented by the MOST
9615, as amended by Resolution No. 9631 declared REV. BISHOP VICENTE M. NAVARRA and THE BISHOP
unconstitutional and therefore null and void. HIMSELF IN HIS PERSONAL CAPACITY,
petitioners, vs. COMMISSION ON ELECTIONS and the
ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL court over the subject matter is determined from the allegations in
V. MAJARUCON, respondents. the petition. Subject matter jurisdiction is defined as the authority
Remedial Law; Special Civil Actions; Certiorari; Rule 64 is not “to hear and determine cases of the general class to which the
the exclusive remedy for all acts of the Commission on proceedings in question belong and is conferred by the sovereign
Elections (COMELEC). Rule 65 is applicable especially to raise authority which organizes the court and defines its powers.”
objections relating to a grave abuse of discretion resulting in the Definitely, the subject matter in this case is different from the cases
ouster of juris- cited by respondents. Nothing less than the electorate’s political
speech will be affected by the restrictions imposed by COMELEC.
_______________ Political speech is motivated by the desire to be heard and
understood, to move people to action. It is concerned with the
* EN BANC. sovereign right to change the contours of power whether through
2
the election of representatives in a republican government or the
2 SUPREME COURT REPORTS ANNOTATED revision of the basic text of the Constitution. The zeal with which
The Diocese of Bacolod vs. Commission on Elections we protect this kind of speech does not depend on our evaluation of
diction.—Rule 64 is not the exclusive remedy for all acts of the the cogency of the message. Neither do
COMELEC. Rule 65 is applicable especially to raise objections 3
relating to a grave abuse of discretion resulting in the ouster of VOL. 747, JANUARY 21, 2015 3
jurisdiction. As a special civil action, there must also be a showing The Diocese of Bacolod vs. Commission on Elections
that there be no plain, speedy, and adequate remedy in the ordinary
course of the law. we assess whether we should protect speech based on the
Election Contests; Appeals; Conditions in Order for the motives of COMELEC. We evaluate restrictions on freedom of
Supreme Court (SC) to Review Orders and Decisions of the expression from their effects. We protect both speech and medium
Commission on Elections (COMELEC) in Electoral Contests Despite because the quality of this freedom in practice will define the
Not Being Reviewed by the COMELEC En Banc.—Based on ABS- quality of deliberation in our democratic society.
CBN Broadcasting Corporation v. COMELEC, 323 SCRA 811 Same; Same; During elections, the Supreme Court (SC) has the
(2000), this court could review orders and decisions of COMELEC power and the duty to correct any grave abuse of discretion or any
— in electoral contests — despite not being reviewed by the act tainted with unconstitutionality on the part of any government
COMELEC En Banc, if: 1) It will prevent the miscarriage of justice; branch or instrumentality.—During elections, we have the power
2) The issue involves a principle of social justice; 3) The issue and the duty to correct any grave abuse of discretion or any act
involves the protection of labor; 4) The decision or resolution sought tainted with unconstitutionality on the part of any government
to be set aside is a nullity; or 5) The need for relief is extremely branch or instrumentality. This includes actions by the COMELEC.
urgent and certiorari is the only adequate and speedy remedy Furthermore, it is this court’s constitutional mandate to protect the
available. people against government’s infringement of their fundamental
Supreme Court; Jurisdictions; Subject Matter Jurisdiction; rights. This constitutional mandate outweighs the jurisdiction
Words and Phrases; The jurisdiction of the Supreme Court (SC) over vested with the COMELEC.
the subject matter is determined from the allegations in the petition. Courts; Hierarchy of Courts; The doctrine that requires respect
Subject matter jurisdiction is defined as the authority “to hear and for the hierarchy of courts was created by the Supreme Court (SC) to
determine cases of the general class to which the proceedings in ensure that every level of the judiciary performs its designated roles
question belong and is conferred by the sovereign authority which in an effective and efficient manner.—The doctrine that requires
organizes the court and defines its powers.”—The jurisdiction of this respect for the hierarchy of courts was created by this court to
ensure that every level of the judiciary performs its designated roles Constitutional Law; Freedom of Expression; In a democracy,
in an effective and efficient manner. Trial courts do not only the citizen’s right to freely participate in the exchange of ideas in
determine the facts from the evaluation of the evidence presented furtherance of political decision-making is recognized.—In a
before them. They are likewise competent to determine issues of democracy, the citizen’s right to freely participate in the exchange
law which may include the validity of an ordinance, statute, or even of ideas in furtherance of political decision-making is recognized. It
an executive issuance in relation to the Constitution. To effectively deserves the highest protection the courts may provide, as public
perform these functions, they are territorially organized into participation in nation-building is a fundamental principle in our
regions and then into branches. Their writs generally reach within Constitution. As such, their right to engage in free expression of
those territorial boundaries. Necessarily, they mostly perform the ideas must be given immediate protection by this court.
all-important task of inferring the facts from the evidence as these Same; Same; The right to suffrage not only includes the right
are physically presented before them. In many instances, the facts to vote for one’s chosen candidate, but also the right to vocalize that
occur within their territorial jurisdiction, which properly present choice to the public in general, in the hope of influencing their
the ‘actual case’ that makes ripe a determination of the votes.—In the case before this court, there is a clear threat to the
constitutionality of such action. The consequences, of course, would paramount right of freedom of speech and freedom of expression
be national in scope. There are, however, some cases where resort which warrants invocation of relief from this court. The principles
to courts at their level would not be practical considering their laid down in this decision will likely influence the discourse of
decisions could still be appealed before the higher courts, such as freedom of speech in the future, especially in the context of
the Court of Appeals. elections. The right to suffrage not only includes the right to vote
4 for one’s chosen candidate, but also the right to vocalize that choice
4 SUPREME COURT REPORTS ANNOTATED to the
The Diocese of Bacolod vs. Commission on Elections 5
Same; Court of Appeals; The Court of Appeals (CA) is primarily VOL. 747, JANUARY 21, 2015 5
designed as an appellate court that reviews the determination of The Diocese of Bacolod vs. Commission on Elections
facts and law made by the trial courts. It is collegiate in nature.— public in general, in the hope of influencing their votes. It may
The Court of Appeals is primarily designed as an appellate court be said that in an election year, the right to vote necessarily
that reviews the determination of facts and law made by the trial includes the right to free speech and expression. The protection of
courts. It is collegiate in nature. This nature ensures more these fundamental constitutional rights, therefore, allows for the
standpoints in the review of the actions of the trial court. But the immediate resort to this court.
Court of Appeals also has original jurisdiction over most special Same; Same; This case concerns the right of petitioners, who
civil actions. Unlike the trial courts, its writs can have a nationwide are noncandidates, to post the tarpaulin in their private property, as
scope. It is competent to determine facts and, ideally, should act on an exercise of their right of free expression.—The present petition
constitutional issues that may not necessarily be novel unless there does not involve a dispute between the rich and poor, or the
are factual questions to determine. powerful and weak, on their equal opportunities for media coverage
Same; Hierarchy of Courts; The doctrine of hierarchy of courts of candidates and their right to freedom of expression. This case
is not an iron-clad rule.—The doctrine of hierarchy of courts is not concerns the right of petitioners, who are noncandidates, to post the
an iron-clad rule. This court has “full discretionary power to take tarpaulin in their private property, as an exercise of their right of
cognizance and assume jurisdiction [over] special civil actions free expression. Despite the invocation of the political question
for certiorari . . . filed directly with it for exceptionally compelling doctrine by respondents, this court is not proscribed from deciding
reasons or if warranted by the nature of the issues clearly and on the merits of this case.
specifically raised in the petition.”
Same; Political Questions; What is generally meant, when it is remedies yields in order to protect this fundamental right.—Peti-
said that a question is political, and not judicial, is that it is a matter tioners’ exercise of their right to speech, given the message and
which is to be exercised by the people in their primary political their medium, had understandable relevance especially during the
capacity, or that it has been specifically delegated to some other elections. COMELEC’s letter threatening the filing of the election
department or particular officer of the government, with offense against petitioners is already an actionable infringement of
discretionary power to act.—In Tañada v. Cuenco, 103 Phil. 1051 this right. The impending threat of criminal litigation is enough to
(1957), this court previously elaborated on the concept of what curtail petitioners’ speech. In the context of this case, exhaustion of
constitutes a political question: What is generally meant, when it is their administrative remedies as COMELEC suggested in their
said that a question is political, and not judicial, is that it is a pleadings prolongs the violation of their freedom of speech. Political
matter which is to be exercised by the people in their primary speech enjoys preferred protection within our constitutional order.
political capacity, or that it has been specifically delegated to some In Chavez v. Gonzales,545 SCRA 441 (2008), Justice Carpio in a
other department or particular officer of the government, with separate opinion emphasized: “[i]f ever there is a hierarchy of
discretionary power to act. (Emphasis omitted) It is not for this protected expressions, political expression would occupy the highest
court to rehearse and reenact political debates on what the text of rank, and among different kinds of political expression, the subject
the law should be. In political forums, particularly the legislature, of fair and honest elections would be at the top.” Sovereignty resides
the creation of the text of the law is based on a general discussion in the people. Political speech is a direct exercise of the sovereignty.
of factual circumstances, broadly construed in order to allow for The principle of exhaustion of administrative remedies yields in
general application by the executive branch. Thus, the creation of order to protect this fundamental right.
the law is not limited by particular and specific facts that affect the Supreme Court; Jurisdiction; Suspension of the Rules; Time
rights of certain individuals, per se. and again, we have held that the Supreme Court (SC) “has the power
Same; Same; A political question arises in constitutional issues to relax or suspend the rules or to except a case from their operation
relating to the powers or competence of different agencies and when compelling reasons so warrant, or when the purpose of justice
departments of the executive or those of the legislature.—A political requires it, [and when] [w]hat constitutes [as] good and sufficient
6 cause that will merit suspension of the rules is discretionary upon
6 SUPREME COURT REPORTS ANNOTATED the court.”—Time and again, we have held that this court “has the
The Diocese of Bacolod vs. Commission on Elections power to relax or suspend the rules or to except a case from their
question arises in constitutional issues relating to the powers operation when compelling reasons so warrant, or when the
or competence of different agencies and departments of the purpose of justice
executive or those of the legislature. The political question doctrine 7
is used as a defense when the petition asks this court to nullify VOL. 747, JANUARY 21, 2015 7
certain acts that are exclusively within the domain of their The Diocese of Bacolod vs. Commission on Elections
respective competencies, as provided by the Constitution or the law. requires it, [and when] [w]hat constitutes [as] good and
In such situation, presumptively, this court should act with sufficient cause that will merit suspension of the rules is
deference. It will decline to void an act unless the exercise of that discretionary upon the court.” Certainly, this case of first
power was so capricious and arbitrary so as to amount to grave impression where COMELEC has threatened to prosecute private
abuse of discretion. parties who seek to participate in the elections by calling attention
Exhaustion of Administrative Remedies; Political Speeches; to issues they want debated by the public in the manner they feel
Sovereignty resides in the people. Political speech is a direct exercise would be effective is one of those cases.
of the sovereignty. The principle of exhaustion of administrative Election Law; Fair Elections Act (R.A. No. 9006); Section 17 of
Commission on Elections (COMELEC) Resolution No. 9615, the
rules and regulations implementing the Fair Elections Act, and even to inaction itself as a symbolic manner of
regulating the posting of campaign materials only apply to communication.—Communication exists when “(1) a speaker,
candidates and political parties, and petitioners are neither of the seeking to signal others, uses conventional actions because he or
two.—Respondents considered the tarpaulin as a campaign she reasonably believes that such actions will be taken by the
material in their issuances. The above provisions regulating the audience in the manner intended; and (2) the audience so takes the
posting of campaign materials only apply to candidates and political actions.” “[I]n communicative action[,] the hearer may respond to
parties, and petitioners are neither of the two. Section 3 of Republic the claims by . . . either accepting the speech act’s claims or
Act No. 9006 on “Lawful Election Propaganda” also states that opposing them with criticism or requests for justification.” Speech
these are “allowed for all registered political parties, national, is not limited to vocal communication. “[C]onduct is treated as a
regional, sectoral parties or organizations participating under the form of speech sometimes referred to as ‘symbolic speech[,]’” such
party list elections and for all bona fidecandidates seeking national that “‘when ‘speech’ and ‘nonspeech’ elements are combined in the
and local elective positions subject to the limitation on authorized same course of conduct,’ the ‘communicative element’ of the conduct
expenses of candidates and political parties. . . .” Section 6 of may be ‘sufficient to bring into play the [right to freedom of
COMELEC Resolution No. 9615 provides for a similar wording. expression].’” The right to freedom of expression, thus, applies to
These provisions show that election propaganda refers to matter the entire continuum of speech from utterances made to conduct
done by or on behalf of and in coordination with candidates and enacted, and even to inaction itself as a symbolic manner of
political parties. Some level of coordination with the candidates and communication.
political parties for whom the election propaganda are released Same; Same; Speech that promotes dialogue on public affairs,
would ensure that these candidates and political parties maintain or airs out grievances and political discontent, should be protected
within the authorized expenses limitation. and encouraged.—Proponents of the political theory on
Constitutional Law; Freedom of Expression; In this case, the “deliberative democracy” submit that “substantial, open, [and]
tarpaulin contains speech on a matter of public concern, that is, a ethical dialogue is a critical, and indeed defining, feature of a good
statement of either appreciation or criticism on votes made in the polity.” This theory may be considered broad, but it definitely
passing of the Reproductive Health Law (RH Law). Thus, “includes [a] collective decision-making with the participation of all
petitioners invoke their right to freedom of expression.—True, there who will be affected by the decision.” It anchors on the principle
is no mention whether election campaign is limited only to the that the cornerstone of every democracy is that sovereignty resides
candidates and political parties themselves. The focus of the in the people. To ensure order in running the state’s affairs,
definition is that the act must be “designed to promote the election sovereign powers were delegated and individuals would be elected
or defeat of a particular candidate or candidates to a public office.” or nominated in key government positions to represent the people.
In this case, the tarpaulin contains speech on a matter of public On this note, the theory on deliberative democracy may evolve to
concern, that is, a statement of either appreciation or criticism on the right of the people to make government accountable.
votes made in the Necessarily, this includes the right of the people to criticize acts
8 made pursuant to governmental functions. Speech that promotes
8 SUPREME COURT REPORTS ANNOTATED dialogue on public affairs, or airs out grievances and political
The Diocese of Bacolod vs. Commission on Elections discontent, should thus be protected and encouraged.
9
passing of the RH Law. Thus, petitioners invoke their right to VOL. 747, JANUARY 21, 2015 9
freedom of expression. The Diocese of Bacolod vs. Commission on Elections
Same; Same; The right to freedom of expression applies to the Same; Same; The Supreme Court (SC) has held free speech and
entire continuum of speech from utterances made to conduct enacted, other intellectual freedoms as “highly ranked in our scheme of
constitutional values.” These rights enjoy precedence and The Diocese of Bacolod vs. Commission on Elections
primacy.—Petitioners invoke their “constitutional right to parties, this does not necessarily mean it is election
communicate their opinions, views and beliefs about issues and propaganda.—While the tarpaulin may influence the success or
candidates.” They argue that the tarpaulin was their statement of failure of the named candidates and political parties, this does not
approval and appreciation of the named public officials’ act of voting necessarily mean it is election propaganda. The tarpaulin was not
against the RH Law, and their criticism toward those who voted in paid for or posted “in return for consideration” by any candidate,
its favor. It was “part of their advocacy campaign against the RH political party, or party list group.
Law,” which was not paid for by any candidate or political party. Same; Same; Speech with political consequences is at the core
Thus, “the questioned orders which . . . effectively restrain[ed] and of the freedom of expression and must be protected by the Supreme
curtail[ed] [their] freedom of expression should be declared Court (SC).—Speech with political consequences is at the core of the
unconstitutional and void.” This court has held free speech and freedom of expression and must be protected by this court. Justice
other intellectual freedoms as “highly ranked in our scheme of Brion pointed out that freedom of expression “is not the god of rights
constitutional values.” These rights enjoy precedence and primacy. to which all other rights and even government protection of state
In Philippine Blooming Mills Employees Organization v. Philippine interest must bow.” The right to freedom of expression is indeed not
Blooming Mills Co., Inc., 51 SCRA 189 (1973), this court discussed absolute. Even some forms of protected speech are still subject to
the preferred position occupied by freedom of expression: Property some restrictions. The degree of restriction may depend on whether
and property rights can be lost thru prescription; but human rights the regulation is content-based or content-neutral. Content-based
are imprescriptible. If human rights are extinguished by the regulations can either be based on the viewpoint of the speaker or
passage of time, then the Bill of Rights is a useless attempt to limit the subject of the expression.
the power of government and ceases to be an efficacious shield Same; Same; Clear and Present Danger Rule; Content-based
against the tyranny of officials, of majorities, of the influential and regulation bears a heavy presumption of invalidity, and this court
powerful, and of oligarchs — political, economic or otherwise. In the has used the clear and present danger rule as measure.—Size
hierarchy of civil liberties, the rights of free expression and of limitations during elections hit at a core part of expression. The
assembly occupy a preferred position as they are essential to the content of the tarpaulin is not easily divorced from the size of its
preservation and vitality of our civil and political institutions; and medium. Content-based regulation bears a heavy presumption of
such priority “gives these liberties the sanctity and the sanction not invalidity, and this court has used the clear and present danger rule
permitting dubious intrusions.” as measure. Thus, in Chavez v. Gonzales, 545 SCRA 441 (2008): A
Same; Same; “Political Speech” and “Commercial Speech,” content-based regulation, however, bears a heavy presumption of
Distinguished.—We distinguish between political and commercial invalidity and is measured against the clear and present danger
speech. Political speech refers to speech “both intended and rule. The latter will pass constitutional muster only if justified by a
received as a contribution to public deliberation about some issue,” compelling reason, and the restrictions imposed are neither
“foster[ing] informed and civic-minded deliberation.” On the other overbroad nor vague. (Citations omitted) Under this rule, “the evil
hand, commercial speech has been defined as speech that does “no consequences sought to be prevented must be substantive,
more than propose a commercial transaction.” The expression ‘extremely serious and the degree of imminence extremely high.’”
resulting from the content of the tarpaulin is, however, definitely “Only when the challenged act has overcome the clear and present
political speech. danger rule will it pass constitutional muster, with the government
Same; Same; Election Propaganda; While the tarpaulin may having the burden of overcoming the presumed
influence the success or failure of the named candidates and political unconstitutionality.”
10 Same; Same; Same; Even with the clear and present danger
10 SUPREME COURT REPORTS ANNOTATED test, respondents failed to justify the regulation. There is no compel-
11 discretion when he modified the rally permit by changing the venue
VOL. 747, JANUARY 21, 2015 11 from Mendiola Bridge to Plaza Miranda without first affording
The Diocese of Bacolod vs. Commission on Elections petitioners the opportunity to be heard.
ling and substantial state interest endangered by the posting of 12
the tarpaulin as to justify curtailment of the right of freedom of 12 SUPREME COURT REPORTS ANNOTATED
expression.—Even with the clear and present danger test, The Diocese of Bacolod vs. Commission on Elections
respondents failed to justify the regulation. There is no compelling Same; Freedom of Expression; Limiting the maximum size of
and substantial state interest endangered by the posting of the the tarpaulin would render ineffective petitioners’ message and
tarpaulin as to justify curtailment of the right of freedom of violate their right to exercise freedom of expression.—In this case,
expression. There is no reason for the state to minimize the right of the size regulation is not unrelated to the suppression of speech.
noncandidate petitioners to post the tarpaulin in their private Limiting the maximum size of the tarpaulin would render
property. The size of the tarpaulin does not affect anyone else’s ineffective petitioners’ message and violate their right to exercise
constitutional rights. freedom of expression. The COMELEC’s act of requiring the
Same; Same; “Content-Based Restraint” and “Content-Neutral removal of the tarpaulin has the effect of dissuading expressions
Regulation,” Distinguished.—Content-based restraint or with political consequences. These should be encouraged, more so
censorship refers to restrictions “based on the subject matter of the when exercised to make more meaningful the equally important
utterance or speech.” In contrast, content-neutral regulation right to suffrage.
includes controls merely on the incidents of the speech such as time, Same; Same; The guarantee of freedom of expression to
place, or manner of the speech. individuals without any relationship to any political candidate
Same; Right of Peaceful Assembly; In the landmark case of should not be held hostage by the possibility of abuse by those
Reyes v. Bagatsing, 125 SCRA 553 (1983), this court summarized seeking to be elected.—The guarantee of freedom of expression to
the steps that permit applicants must follow which include individuals without any relationship to any political candidate
informing the licensing authority ahead of time as regards the date, should not be held hostage by the possibility of abuse by those
public place, and time of the assembly.—In the landmark case seeking to be elected. It is true that there can be underhanded,
of Reyes v. Bagatsing, 125 SCRA 553 (1983), this court summarized covert, or illicit dealings so as to hide the candidate’s real levels of
the steps that permit applicants must follow which include expenditures. However, labelling all expressions of private parties
informing the licensing authority ahead of time as regards the date, that tend to have an effect on the debate in the elections as election
public place, and time of the assembly. This would afford the public paraphernalia would be too broad a remedy that can stifle genuine
official time to inform applicants if there would be valid objections, speech like in this case. Instead, to address this evil, better and
provided that the clear and present danger test is the standard used more effective enforcement will be the least restrictive means to the
for his decision and the applicants are given the opportunity to be fundamental freedom.
heard. This ruling was practically codified in Batas Pambansa Same; Same; Satire; Words and Phrases; Satire is a “literary
Blg. 880, otherwise known as the Public Assembly Act of 1985. form that employs such devices as sarcasm, irony and ridicule to
Subsequent jurisprudence have upheld Batas Pambansa Blg. 880 deride prevailing vices or follies,” and this may target any
as a valid content-neutral regulation. In the 2006 case of Bayan v. individual or group in society, private and government alike.—The
Ermita, 488 SCRA 226 (2006), this court discussed how Batas twin tarpaulins consist of satire of political parties. Satire is a
Pambansa Blg. 880 does not prohibit assemblies but simply “literary form that employs such devices as sarcasm, irony and
regulates their time, place, and manner. In 2010, this court found ridicule to deride prevailing vices or follies,” and this may target
in Integrated Bar of the Philippines v. Atienza, 613 SCRA 518 any individual or group in society, private and government alike. It
(2010), that respondent Mayor Atienza committed grave abuse of seeks to effectively communicate a greater purpose, often used for
“political and social criticism” “because it tears down facades, range of opinions coming from the electorate including those that
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more can catalyze candid, uninhibited, and robust debate in the criteria
thoroughly democratic than to have the high-and-mighty for the choice of a candidate.
lampooned and spoofed.” Northrop Frye, well-known in this literary Same; Same; Regulation of election paraphernalia will still be
field, claimed that satire had two defining features: “one is wit or constitutionally valid if it reaches into speech of persons who are not
humor founded on fantasy or a sense of the grotesque and absurd, candidates or who do not speak as members of a political party if
the other is an object of attack.” Thus, they are not candidates, only if what is regulated is declarative
13 speech that, taken as a whole, has for its principal object the
VOL. 747, JANUARY 21, 2015 13 endorsement of a candidate only; The regulation must only be with
The Diocese of Bacolod vs. Commission on Elections respect to the
satire frequently uses exaggeration, analogy, and other 14
rhetorical devices. 14 SUPREME COURT REPORTS ANNOTATED
Same; Same; In an equality-based approach, “politically The Diocese of Bacolod vs. Commission on Elections
disadvantaged speech prevails over regulation[,] but regulation time, place, and manner of the rendition of the message.—
promoting political equality prevails over speech.”—In an equality- Regulation of election paraphernalia will still be constitutionally
based approach, “politically disadvantaged speech prevails over valid if it reaches into speech of persons who are not candidates or
regulation[,] but regulation promoting political equality prevails who do not speak as members of a political party if they are not
over speech.” This view allows the government leeway to candidates, only if what is regulated is declarative speech that,
redistribute or equalize ‘speaking power,’ such as protecting, even taken as a whole, has for its principal object the endorsement of a
implicitly subsidizing, unpopular or dissenting voices often candidate only. The regulation (a) should be provided by law, (b)
systematically subdued within society’s ideological ladder. This reasonable, (c) narrowly tailored to meet the objective of enhancing
view acknowledges that there are dominant political actors who, the opportunity of all candidates to be heard and considering the
through authority, power, resources, identity, or status, have primacy of the guarantee of free expression, and (d) demonstrably
capabilities that may drown out the messages of others. This is the least restrictive means to achieve that object. The regulation
especially true in a developing or emerging economy that is part of must only be with respect to the time, place, and manner of the
the majoritarian world like ours. rendition of the message. In no situation may the speech be
Same; Same; Regulation of speech in the context of electoral prohibited or censored on the basis of its content. For this purpose,
campaigns made by candidates or the members of their political it will not matter whether the speech is made with or on private
parties or their political parties may be regulated as to time, place, property.
and manner.—Clearly, regulation of speech in the context of Same; Same; Right to Property; Other than the right to freedom
electoral campaigns made by candidates or the members of their of expression and the meaningful exercise of the right to suffrage, the
political parties or their political parties may be regulated as to present case also involves one’s right to property.—Other than the
time, place, and manner. This is the effect of our rulings in Osmeña right to freedom of expression and the meaningful exercise of the
v. COMELEC, 288 SCRA 447 (1998) and National Press Club v. right to suffrage, the present case also involves one’s right to
COMELEC, 207 SCRA 1 (1992). Regulation of speech in the context property.
of electoral campaigns made by persons who are not candidates or Same; Same; Same; Freedom of expression can be intimately
who do not speak as members of a political party which are, taken related with the right to property.—Freedom of expression can be
as a whole, principally advocacies of a social issue that the public intimately related with the right to property. There may be no
must consider during elections is unconstitutional. Such regulation expression when there is no place where the expression may be
is inconsistent with the guarantee of according the fullest possible made. COMELEC’s infringement upon petitioners’ property rights
as in the present case also reaches out to infringement on their Omnibus Election Code is in the field of election propaganda
fundamental right to speech. regulation.
Same; Same; This caricature, though not agreeable to some, is Same; Election Spending; Words and Phrases; View that
still protected speech.—The tarpaulin in question may be viewed as “election spending” refers not only to expenses of political parties and
producing a caricature of those who are running for public office. candidates but also to expenses of their supporters.—“Election
Their message may be construed generalizations of very complex spending” refers not only to expenses of political parties
individuals and party list organizations. They are classified into and candidates but also to expenses of their supporters.
black and white: as belonging to “Team Patay” or “Team Buhay.” (Otherwise, all the limitations on election spending and on
But this caricature, though not agreeable to some, is still protected what constitutes lawful election propaganda would be
speech. meaningless). Freeing noncandidates and non-parties from the
15 coverage of RA 9006 allows them to (1) print campaign ad banners
VOL. 747, JANUARY 21, 2015 15 and posters of any size and in any quantity, (2) place TV and radio
The Diocese of Bacolod vs. Commission on Elections ads in national and local stations for any length of time, and (3)
Carpio, J., Separate Concurring Opinion: place full-page print ads in broadsheets, tabloids and related
Election Law; Political Ads; View that Republic Act (RA) No. media. Obviously,
16
9006 regulates a host of other campaign related acts, such as the
airing and printing of paid political ads (Section 3.4 in relation to 16 SUPREME COURT REPORTS ANNOTATED
Section 4) and the conduct of election surveys (Section 5), which The Diocese of Bacolod vs. Commission on Elections
involve not only political parties and candidates but also other printing posters of any size, placing full-page print ads, and
individuals or entities who fall within the ambit of these running extended broadcast ads all entail gargantuan costs. Yet,
provisions.—Section 3.3 of RA 9006 and its implementing rule for under the ponencia’s holding, so long as these are done by
the 2013 elections, Section 6(c) of Resolution 9615, are regulations noncandidates and nonpolitical parties, the state is powerless to
of general applicability, covering campaign speech of all — regulate them.
candidates, noncandidates, political parties and nonpolitical Constitutional Law; Freedom of Expression; Free Speech
parties. This conclusion is compelled by the absence of any provision Clause; To satisfy the strictures of the Free Speech Clause, Congress
in RA 9006, and indeed, in any related statutes, limiting their needs to craft legislation on the sizing of campaign posters and other
application only to the campaign speech of candidates and political paraphernalia with sufficient flexibility to address concerns
parties. On the contrary, the penal clause of RA 9006 is couched in inherent in the present fixed-dimension model.—The practical effect
broad language encompassing within its ambit anyone who of the fixed-size rule under Section 3.3 of RA 9006 (and its
breaches its provisions: “[v]iolation of th[e] Act and the rules and implementing rule) is to further narrow the choices of poster
regulations of the COMELEC issued to implement [it] shall be an locations for anyone wishing to display them in any of the venues
election offense punishable under the first and second paragraphs allowed by law. Voters who wish to make known to the public their
of Section 264 of the Omnibus Election Code.” Indeed, RA 9006 choice of candidates (or for that matter, candidates who wish to
regulates a host of other campaign related acts, such as the airing advertise their candidacies) through the display of posters are
and printing of paid political ads (Section 3.4 in relation to Section precluded from doing so from certain areas not because these areas
4) and the conduct of election surveys (Section 5), which involve are off-limits but because, for reasons of geography vis-à-vis the
not only political parties and candidates but also other size of the poster, their contents simply become illegible. Such
individuals or entities who fall within the ambit of these restriction on campaign speech appears to me to be “greater than is
provisions. RA 9006 is a generally applicable law as much as the essential” to advance the important government interests of
minimizing election spending and ensuring orderly elections. To
satisfy the strictures of the Free Speech Clause, Congress needs to as a result of its enforcement; (3) the question of constitutionality
craft legislation on the sizing of campaign posters and other must be raised at the earliest opportunity; and (4) the issue of
paraphernalia with sufficient flexibility to address concerns constitutionality must be the very lis motaof the case. Failure to
inherent in the present fixed-dimension model. meet any of these requirements justifies the Court’s refusal to
Brion, J., Dissenting Opinion: exercise its power of judicial review under the Court’s traditional
Judicial Review; View that the petition prematurely availed of power. The Court, however, has, in several instances, opted to relax
the Supreme Court’s (SC’s) power of judicial review by openly one or more of these requirements to give due course to a petition
disregarding established Commission on Elections (COMELEC) presenting issues of transcendental importance to the nation.
processes by bypassing the comelec En Banc.—In my view, the Same; Locus Standi; Transcendental Importance Doctrine;
petition prematurely availed of the Court’s power of judicial review View that when the standing is relaxed because of the transcendental
BY OPENLY DISREGARDING ESTABLISHED COMELEC importance doctrine, the character of the injury presented to fulfill
PROCESSES BY BYPASSING THE COMELEC EN BANC. This is the actual case or controversy requirement is likewise tempered.—In
a legal mortal sin that will sow havoc in future cases before this these cases, the doctrine of transcendental importance relaxes the
Court. The petition consequently failed to show any prima standing requirement, and thereby indirectly relaxes the injury
facie case of grave abuse of discretion on the part of the Comelec, as embodied in the actual case or controversy requirement. Note at
it had not yet finally decided on its course of action. Most this point that an actual case or controversy is present when the
importantly, the issues the petition presents have now been issues it poses are ripe for adjudication, that is, when the act being
MOOTED and do not now present any LIVE CONTROVERSY. The challenged has had a direct adverse effect on the individual
Court will recall that we im- challenging it. Standing, on the other hand, requires a personal
17 and substantial interest manifested through a direct injury that the
VOL. 747, JANUARY 21, 2015 17 petitioner has or will sustain as a result of the questioned act. Thus,
The Diocese of Bacolod vs. Commission on Elections when the stand-
18
mediately issued a temporary restraining order to halt further
Comelec action, so that the petitioner was effectively the prevailing 18 SUPREME COURT REPORTS ANNOTATED
party when the elections — the critical time involved in this case — The Diocese of Bacolod vs. Commission on Elections
took place. Subsequently, the interest advocated in the disputed ing is relaxed because of the transcendental importance
tarpaulin was decided by this Court to the satisfaction of the public doctrine, the character of the injury presented to fulfill the actual
at large, among them the Church whose right to life views case or controversy requirement is likewise tempered. When we, for
prevailed. THESE ARE CIRCUMSTANCES THAT SHOULD instance, say that the petitioners have no standing as citizens or as
DISSUADE THIS COURT FROM RULING ON A CASE THAT taxpayers but we nevertheless give the petition due course, we
WEIGHS THE RIGHTS OF FREE SPEECH AND DEMOCRATIC indirectly acknowledge that the injury that they had or will sustain
ELECTORAL VALUES. is not personally directed towards them, but to the more general
Same; View on Requirements of Justiciability.—Judicial and abstract Filipino public.
review under the traditional jurisdiction of the Court requires the Same; Political Questions; View that the political question
following requirements of justiciability: (1) there must be doctrine prevents the Supreme Court (SC) from deciding cases that
an actual case or controversy calling for the exercise of judicial are of a political nature, and leaves the decision to the elected
power; (2) the person challenging the act must have officials of government.—The political question doctrine prevents
the standing to question the validity of the subject act or issuance; the Court from deciding cases that are of a political nature, and
otherwise stated, he must have a personal and substantial interest leaves the decision to the elected-officials of government. In other
in the case such that he has sustained, or will sustain, direct injury words, the Court, through the political question doctrine, defers to
the judgment and discretion of the Executive and Legislature, demands that the requirement of actual controversy based on
matters that involve policy because they are the people’s elected specific legal rights must exist.
officials and hence are more directly accountable to them. Commission on Elections; Jurisdiction; View that the
Same; Same; View that the 1987 Constitution, recognizing the constitutional grant to the Commission on Elections (Comelec) of the
importance of the Supreme Court’s (SC’s) active role in checking power to investigate and to prosecute election offenses as an adjunct
abuses in government, relaxed the political question doctrine and to the enforcement and administration of all election laws is
made it a duty upon the Court to determine whether there had been intended to enable the Comelec to effectively ensure to the people the
abuses in the government’s exercise of discretion and consequently free, orderly, and honest conduct of elections.—The petition
nullify such actions that violate the Constitution albeit in the narrow characterizes the notices as administrative acts of the Comelec that
and limited instances of grave abuse of discretion.—The 1987 are outside the latter’s jurisdiction to perform. The
Constitution, recognizing the importance of the Court’s active role Comelec’s administrative function refers to the enforcement and
in checking abuses in government, relaxed the political question administration of election laws. Under Section 2(6), Article IX-C of
doctrine and made it a duty upon the Court to determine whether the Constitution, the Comelec is expressly given the power to
there had been abuses in the government’s exercise of discretion “prosecute cases of violations of election laws, including acts or
and consequently nullify such actions that violate the omissions constituting election frauds, offenses, and malpractices.”
Constitution albeit in the narrow and limited instances of grave The constitutional grant to the Comelec of the power to investigate
abuse of discretion. Thus, when a government agency’s exercise of and to prosecute election offenses as an adjunct to the enforcement
discretion is so grave as to amount to an excess or lack of and administration of all election laws is intended to enable the
jurisdiction, it becomes the duty to step in and check for violations Comelec to effectively ensure to the people the free, orderly, and
of the Constitution. In these instances, the political question honest conduct of elections.
doctrine cannot prevent the Court from determining whether the Judicial Review; Jurisdiction; Expanded Jurisdiction; View
government gravely abused its jurisdiction, against the back drop that the Supreme Court (SC) reviews Commission on Elections’
of the Constitution. (Comelec’s) administrative acts only by way of exception, when it
19 acts capriciously or whimsically, with grave abuse of discretion
VOL. 747, JANUARY 21, 2015 19 amounting to lack or excess of jurisdiction. Necessarily, this invokes
The Diocese of Bacolod vs. Commission on Elections the Court’s expanded jurisdiction under the second paragraph of
Same; Same; View that translated in terms of the Supreme Article VIII, Section 1.—The Court reviews Comelec’s adminis-
Court’s (SC’s) expanded jurisdiction, the actual case or controversy 20
requirement is fulfilled by a prima facie showing of grave abuse 20 SUPREME COURT REPORTS ANNOTATED
of discretion.—Translated in terms of the Court’s expanded The Diocese of Bacolod vs. Commission on Elections
jurisdiction, the actual case or controversy requirement is fulfilled trative acts only by way of exception, when it acts
by a prima facie showing of grave abuse of discretion. This capriciously or whimsically, with grave abuse of
approach reflects the textual requirement of grave abuse of discretion amounting to lack or excess of jurisdiction. Necessarily,
discretion in the second paragraph of Article VIII, Section 1 of the this invokes the Court’s expanded jurisdiction under the second
1987 Constitution. As I have earlier pointed out in my separate paragraph of Article VIII, Section 1. That there is an alleged grave
opinion in Araullo v. Aquino III, 728 SCRA 1 (2014), justiciability abuse of discretion on the part of Comelec, however, does not
under the expanded judicial power expressly and textually depends automatically mean that the petition should be given due course. It
only on the presence or absence of grave abuse of discretion, as has to meet the requirements of justiciability which, under the
distinguished from a situation where the issue of constitutional terms of the Court’s expanded judicial power, has been translated
validity is raised within a “traditionally” justiciable case which to mean a prima facie showing of a governmental entity, office
or official granted discretionary authority to act and that judicial review of its actions may be availed of through a petition for
this authority has been gravely abused. There can be no prima certiorari under the Rules of Court.—But while these issues are
facie showing of grave abuse of discretion unless something has capable of repetition, they most certainly cannot escape review. The
already been done or has taken place under the law and the administrative process outlined in Comelec Resolution No. 9615
petitioner sufficiently alleges the existence of a threatened or provides a process through which the Comelec may decide these
immediate injury to itself as a result of the gravely abusive exercise issues with finality. After the Comelec had been allowed to exercise
of discretion. its jurisdiction to the fullest, judicial review of its actions may be
Election Law; Preliminary Investigation; View that availed of through a petition for certiorariunder the Rules of
Commission on Elections (Comelec) Resolution No. 9386 (Rules of Court. At that point, the issues would certainly no longer be
Procedure in the Investigation and Prosecution of Election Offense premature.
Cases in the COMELEC), in particular, provides that once a Election Law; View that the content of the tarpaulin, as well as
complaint is initiated, an investigating officer would have to conduct the timing of its posting, makes it subject of the regulations in
a preliminary investigation to determine whether it warrants Republic Act (RA) No. 9006 and Commission on Elections (Comelec)
prosecution.—Comelec Resolution No. 9386 (Rules of Procedure Resolution No. 9615.—The content of the tarpaulin, as well as the
in the Investigation and Prosecution of Election Offense timing of its posting, makes it subject of the regulations in RA 9006
Cases in the Commission on Elections), in particular, provides and Comelec Resolution No. 9615. Comelec Resolution No. 9615
that once a complaint is initiated, an investigating officer would contains rules and regulations implementing RA 9006 during the
have to conduct a preliminary investigation to determine whether 2013 national elections. Section 3 of RA 9006 and Section 6 of
it warrants prosecution. At this stage, the respondent(s) to the Comelec Resolution No. 9615 seek to regulate election propaganda,
complaint may submit his counter-affidavit and other supporting defined in the latter as: The term “political advertisement” or
documents for the complaint’s dismissal. The investigating officer “election propaganda” refers to any matter broadcasted,
may also hold a hearing to propound clarificatory questions to the published, printed, displayed or exhibited, in any medium,
parties and their witnesses. The parties may even submit questions which contain the name, image, logo, brand, insignia, color motif,
to the investigating officer, which the latter may propound to the initials, and other symbol or graphic representation that
parties or parties or witnesses concerned. is capable of being associated with a candidate or party, and
Moot and Academic; View that a case becomes moot and is intended to draw the attention of the public or a segment
academic when there is no more actual controversy between the thereof to promote or oppose, directly or indirectly, the
parties, or no useful purpose can be served in passing upon the election of the said candidate or candidates to a
merits.—A petition becomes moot and academic when it “ceases to public office. In broadcast media, political advertisements may
present a justiciable controversy by virtue of supervening events, so take the form of spots, appearances on TV shows and radio
that a programs, live or taped announcements, teasers, and other forms of
21 advertising messages or announcements used by commercial
VOL. 747, JANUARY 21, 2015 21 advertisers. Political advertising includes matters, not falling
The Diocese of Bacolod vs. Commission on Elections within the scope of personal opinion, that appear on any Internet
declaration thereon would be of no practical use or value.” A website, including, but not limited to, social networks,
case becomes moot and academic when there is no more actual 22
controversy between the parties, or no useful purpose can be served 22 SUPREME COURT REPORTS ANNOTATED
in passing upon the merits. The Diocese of Bacolod vs. Commission on Elections
Judicial Review; View that after the Commission on Elections blogging sites, and micro-blogging sites, in return for
(Comelec) had been allowed to exercise its jurisdiction to the fullest, consideration, or otherwise capable of pecuniary estimation.
Same; Election Propaganda; View that had Congress intended VOL. 747, JANUARY 21, 2015 23
to limit its definition of election propaganda to materials posted for The Diocese of Bacolod vs. Commission on Elections
or in behalf of candidates, it could have so specified.—Had compelling state interest, otherwise, the Court will strike it
Congress intended to limit its definition of election down as unconstitutional. In contrast, content-neutral
propaganda to materials posted for or in behalf of regulations are not presumed unconstitutional. They pass
candidates, it could have so specified. Notably, Section 9 on the constitutional muster once they meet the following
Posting of Campaign Materials indicates who the Comelec may requirements: first, that the regulation is within the constitutional
authorize to erect common poster areas for campaign materials in power of the Government; second, that it furthers an important or
public places. It does not, as the ponencia makes it appear, limit substantial governmental interest; third, that the governmental
the definition of election propaganda to those posted by candidates interest is unrelated to the suppression of free expression;
and parties. The title of Section 9 uses the word “campaign and fourth, that the incidental restriction on speech is no greater
materials” and not election propaganda; thus, it refers to a than is essential to further that interest. The assailed
particular type of election propaganda. Election regulations in the present case involve a content-neutral
propaganda becomes a campaign material once it is used by regulation that controls the incidents of speech. Both the
candidates and political parties. Nevertheless, the latter is notice and letter sent by the Comelec to the Diocese of Bacolod
different from the more generic term ‘election propaganda’ sought to enforce Section 3.3 of RA 9006 and Section 6(c) of Comelec
in the other parts of RA 9006. Resolution No. 9615 which limits the size of posters that contain
Same; Same; View that that the subject poster was posted on election propaganda to not more than two by three feet. It does not
private property does not divest the Commission on Elections prohibit anyone from posting materials that contain election
(Comelec) of authority to regulate it.—That the subject poster was propaganda, so long as it meets the size limitations.
posted on private property does not divest the Comelec of authority Constitutional Law; Freedom of Expression; View that
to regulate it. The law specifically recognizes the posting of election Philippine jurisprudence has long settled that the time, place, and
propaganda on private property provided its owner consents to it. manner of speech may be subject to Government regulation. Since
In the present case, the property owner is the Diocese of Bacolod the size of a poster involves a time, place and manner regulation,
itself, and the posting of the subject poster was made upon its own then it may be the proper subject of a government regulation.—
directive. Philippine jurisprudence has long settled that the time, place, and
Same; Same; Content-Neutral Regulations; View that the manner of speech may be subject to Government regulation. Since
assailed regulations in the present case involve a content-neutral the size of a poster involves a time, place and manner regulation,
regulation that controls the incidents of speech. Both the notice and then it may be the proper subject of a government regulation. That
letter sent by the Commission on Elections (Comelec) to the Diocese Congress may impose regulations on the time place, and manner of
of Bacolod sought to enforce Section 3.3 of Republic Act (RA) No. speech during the election period is even implicitly recognized in
9006 and Section 6(c) of Comelec Resolution No. 9615 which limits Section 2, paragraph 7, Article IX-C of the 1987 Constitution. Under
the size of posters that contain election propaganda to not more than this provision, the Comelec is empowered to recommend to
two (2) by three (3) feet. It does not prohibit anyone from posting Congress effective measures to minimize election spending,
materials that contain election propaganda, so long as it meets the including limitation of places where propaganda materials shall be
size limitations.—Content-based regulations are viewed with a posted. That Congress can pass regulations regarding places where
heavy presumption of unconstitutionality. Thus, the government propaganda materials may be posted necessarily indicates that it
has the burden of showing that the regulation is narrowly tailored can also pass other content-neutral regulations, such as the time
to meet a and manner of the speech’s utterance.
23
Same; Same; View that freedom of expression, in the first place, justified if it is within the constitutional power of the Government,
is not the god of rights to which all other rights and even government if [(a)] it furthers an important or substantial governmental interest;
protection of state interest must bow.—Freedom of expression, in the [(b)] the governmental interest is unrelated to the suppression of free
first place, is not the god of rights to which all other rights and even expression; and [(c)] the incident restriction on alleged [freedom of
24 speech and expression] is no greater than is essential to the
24 SUPREME COURT REPORTS ANNOTATED furtherance of that interest.—As comprehensively explained in the
The Diocese of Bacolod vs. Commission on Elections seminal case of Chavez v. Gonzales, 545 SCRA 441 (2008), “[w]hen
the speech
25
government protection of state interest must bow. Speech
rights are not the only important and relevant values even in the VOL. 747, JANUARY 21, 2015 25
most democratic societies. Our Constitution, for instance, values The Diocese of Bacolod vs. Commission on Elections
giving equal opportunity to proffer oneself for public office, without restraints take the form of a content-neutral
regard to a person’s status, or the level of financial resources that regulation, only a substantial governmental interest is
one may have at one’s disposal. required for its validity. Because regulations of this type are not
Same; Same; View that size limits to posters are necessary to designed to suppress any particular message, they are not subject
ensure equality of public information campaigns among candidates, to the strictest form of judicial scrutiny but an intermediate
as allowing posters with different sizes gives candidates and their approach — somewhere between the mere rationality that is
supporters the incentive to post larger posters. This places required of any other law and the compelling interest standard
candidates with more money and/or with deep-pocket supporters at applied to content-based restrictions. The test is
an undue advantage against candidates with more humble called intermediate because the Court will not merely
financial capabilities.—Size limits to posters are necessary to rubberstamp the validity of a law but also require that the
ensure equality of public information campaigns among candidates, restrictions be narrowly-tailored to promote an important or
as allowing posters with different sizes gives candidates and their significant governmental interest that is unrelated to the
supporters the incentive to post larger posters. This places suppression of expression. The intermediate approach has [thus]
candidates with more money and/or with deep-pocket supporters at been formulated in this manner: A governmental regulation is
an undue advantage against candidates with more humble sufficiently justified if it is within the constitutional power of the
financial capabilities. Notably, the law does not limit the number of Government, if [(a)] it furthers an important or substantial
posters that a candidate, his supporter, or a private individual may governmental interest; [(b)] the governmental interest is
post. If the size of posters becomes unlimited as well, then unrelated to the suppression of free expression; and [(c)] the
candidates and parties with bigger campaign funds could effectively incident restriction on alleged [freedom of speech and expression] is
crowd out public information on candidates with less money to no greater than is essential to the furtherance of that interest.”
spend to secure posters — the former’s bigger posters and sheer Same; Same; Same; View that a governmental action that
number could effectively take the attention away from the latter’s restricts freedom of speech or of the press based on content is given
message. In the same manner, a lack of size limitations would also the strictest scrutiny in light of its inherent and invasive impact.—
crowd out private, unaffiliated individuals from participating in the A governmental action that restricts freedom of speech or of the
discussion through posters, or at the very least, compel them to press based on content is given the strictest scrutiny in light of
erect bigger posters and thus spend more. its inherent and invasive impact. Only when the challenged act has
Perlas-Bernabe, J., Separate Concurring Opinion: overcome the clear and present danger rule will it pass
Constitutional Law; Freedom of Expression; Content-Neutral constitutional muster, with the government having the burden of
Regulation; View that a governmental regulation is sufficiently overcoming the presumed unconstitutionality.
Same; Same; View that while the Commission on Elections’ expressions made by the citizens — who are not candidates —
(COMELEC’s) regulatory powers ought to be recognized, personal during elections.
advocacies pertaining to relevant social issues by a private entity Before us is a special civil action for certiorari and
within its own private property ought to fall beyond that broad prohibition with application for preliminary injunction and
authority, lest we stifle the value of a core liberty.—Considering the
temporary restraining order1 under Rule 65 of the Rules of
totality of the factors herein detailed, and equally bearing in mind
Court seeking to nullify COMELEC’s Notice to Remove
the discussions made in Adiong v. COMELEC, 207 SCRA 712
(1992), I submit that the COMELEC issuances subject of this case Campaign Materials2 dated February 22, 2013 and
do not satisfy the substantial governmental interest requisite and, letter3 issued on February 27, 2013.
hence, fail the intermediate scrutiny test. Surely, while the
_______________
COMELEC’s regulatory powers ought to be recognized, personal
advocacies per- 1 Rollo, pp. 3-8.
26 2 Id., at p. 19.
26 SUPREME COURT REPORTS ANNOTATED 27
The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 27
taining to relevant social issues by a private entity within its The Diocese of Bacolod vs. Commission on Elections
own private property ought to fall beyond that broad authority, lest The facts are not disputed.
we stifle the value of a core liberty. On February 21, 2013, petitioners posted two (2) tarpaulins
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari within a private compound housing the San Sebastian
and Prohibition. Cathedral of Bacolod. Each tarpaulin was approximately six
The facts are stated in the opinion of the Court. feet (6’) by ten feet (10’) in size. They were posted on the front
Ralph A. Sarmiento, Raymundo T. Pandan, Jr. and walls of the cathedral within public view. The first tarpaulin
Michelle M. Abella for petitioners. contains the message “IBASURA RH Law” referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354.
LEONEN, J.: The second tarpaulin is the subject of the present case.4
This tarpaulin contains the heading “Conscience Vote” and
“The Philippines is a democratic and republican State. lists candidates as either “(Anti-RH) Team Buhay” with a
Sovereignty resides in the people and all government authority
check mark, or “(Pro-RH) Team Patay” with an “X” mark.5 The
emanates from them.” — Article II, Section 1, Constitution
electoral candidates were classified according to their vote on
the adoption of Republic Act No. 10354, otherwise known as
All governmental authority emanates from our people. No
the RH Law.6 Those who voted for the passing of the law were
unreasonable restrictions of the fundamental and preferred
classified by petitioners as comprising “Team Patay,” while
right to expression of the electorate during political contests
those who voted against it form “Team Buhay”:7
no matter how seemingly benign will be tolerated.
This case defines the extent that our people may shape the
debates during elections. It is significant and of first
impression. We are asked to decide whether the Commission
on Elections (COMELEC) has the competence to limit
ruling by COMELEC Law Department regarding the
tarpaulin; and (2) pending this opinion and the availment of
legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued
a letter12 ordering the immediate removal of the tarpaulin;
otherwise, it will be constrained to file an election offense
against petitioners. The letter of COMELEC Law Department
was silent on the remedies available to petitioners. The letter
_______________ provides as follows:

3 Id., at p. 23. _______________


4 Id., at p. 6.
5 Id., at p. 155. 8 Id., at p. 19.
6 Id., at pp. 6-7. 9 See COMELEC Resolution No. 9615 (2013), Sec. 6(c).
7 Id. 10 Rollo, pp. 20-22.
28 11 Id., at p. 21.
28 SUPREME COURT REPORTS ANNOTATED 12 Id., at p. 23.
29
The Diocese of Bacolod vs. Commission on Elections
VOL. 747, JANUARY 21, 2015 29
The Diocese of Bacolod vs. Commission on Elections
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City,
Atty. Mavil Majarucon, had already given you notice on February
During oral arguments, respondents conceded that the 22, 2013 as regards the election propaganda material posted on the
tarpaulin was neither sponsored nor paid for by any church vicinity promoting for or against the candidates and party
candidate. Petitioners also conceded that the tarpaulin list groups with the following names and messages, particularly
described as follows:
contains names of candidates for the 2013 elections, but not of
politicians who helped in the passage of the RH Law but were
not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V.
Majarucon, in her capacity as Election Officer of Bacolod City,
issued a Notice to Remove Campaign Materials8 addressed to
petitioner Most Rev. Bishop Vicente M. Navarra. The election
officer ordered the tarpaulin’s removal within three (3) days
from receipt for being oversized. COMELEC Resolution No.
9615 provides for the size requirement of two feet (2’) by three The three (3)-day notice expired on February 25, 2013.
feet (3’).9 Considering that the above mentioned material is found to be in
On February 25, 2013, petitioners replied10 requesting, violation of Comelec Resolution No. 9615 promulgated on January
among others, that (1) petitioner Bishop be given a definite 15, 2013 particularly on the size (even with the subsequent division
of the said tarpaulin into two), as the lawful size for election this court is not the proper remedy to question the notice and
propaganda material is only two feet (2’) by three feet (3’), please letter of respondents; and (2) the tarpaulin is an election
order/cause the immediate removal of said election propaganda propaganda subject to regulation by COMELEC pursuant to
material, otherwise, we shall be constrained to file an election its mandate under Article IX-C, Section 4 of the Constitution.
offense case against you.
Hence, respon-
We pray that the Catholic Church will be the first institution to
help the Commission on Elections in ensuring the conduct of _______________
peaceful, orderly, honest and credible elections.
Thank you and God Bless! 13 Id.
30 14 Id., at pp. 15-16.
30 SUPREME COURT REPORTS ANNOTATED 15 Id., at p. 16.
16 Id., at p. 24.
The Diocese of Bacolod vs. Commission on Elections 31
[signed] VOL. 747, JANUARY 21, 2015 31
ATTY. ESMERALDA AMORA-LADRA
The Diocese of Bacolod vs. Commission on Elections
Director IV13
dents claim that the issuances ordering its removal for
Concerned about the imminent threat of prosecution for being oversized are valid and constitutional.18
their exercise of free speech, petitioners initiated this case During the hearing held on March 19, 2013, the parties
through this petition for certiorari and prohibition with were directed to file their respective memoranda within 10
application for preliminary injunction and temporary days or by April 1, 2013, taking into consideration the
restraining order.14 They question respondents’ notice dated intervening holidays.19
February 22, 2013 and letter issued on February 27, 2013. The issues, which also served as guide for the oral
They pray that: (1) the petition be given due course; (2) a arguments, are:20
I.
temporary restraining order (TRO) and/or a writ of
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY
preliminary injunction be issued restraining respondents ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY
from further proceeding in enforcing their orders for the 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
removal of the Team Patay tarpaulin; and (3) after notice and CONSIDERED JUDGMENTS/
hearing, a decision be rendered declaring the questioned FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
orders of respondents as unconstitutional and void, and WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65
permanently restraining respondents from enforcing them or PETITION[;]
any other similar order.15 A. WHETHER PETITIONERS VIOLATED THE HIERARCHY
After due deliberation, this court, on March 5, 2013, issued OF COURTS DOCTRINE AND JURISPRUDENTIAL RULES
a temporary restraining order enjoining respondents from GOVERNING APPEALS FROM COMELEC DECISIONS;
enforcing the assailed notice and letter, and set oral B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED
ORDERS ARE NOT CONSIDERED JUDGMENTS/
arguments on March 19, 2013.16
FINAL ORDERS/RESOLUTIONS OF THE COMELEC,
On March 13, 2013, respondents filed their WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES
comment17 arguing that (1) a petition for certiorari and WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE
prohibition under Rule 65 of the Rules of Court filed before OF THE CASE[;]
_______________ The Diocese of Bacolod vs. Commission on Elections
17 Id., at pp. 32-49.
Respondents ask that this petition be dismissed on the
18 Id., at p. 35. ground that the notice and letter are not final orders,
19 Id., at p. 50C. decisions, rulings, or judgments of the COMELEC En
20 Id., at pp. 94-96. Banc issued in the exercise of its adjudicatory powers,
32
reviewable via Rule 64 of the Rules of Court.21
32 SUPREME COURT REPORTS ANNOTATED
Rule 64 is not the exclusive remedy for all acts of the
The Diocese of Bacolod vs. Commission on Elections COMELEC. Rule 65 is applicable especially to raise objections
II.
relating to a grave abuse of discretion resulting in the ouster
WHETHER IT IS RELEVANT TO DETERMINE WHETHER
of jurisdiction.22 As a special civil action, there must also be a
THE TARPAULINS ARE “POLITICAL ADVERTISEMENT” OR
“ELECTION PROPAGANDA” CONSIDERING THAT showing that there be no plain, speedy, and adequate remedy
PETITIONER IS NOT A POLITICAL CANDIDATE[;] in the ordinary course of the law.
III. Respondents contend that the assailed notice and letter are
WHETHER THE TARPAULINS ARE A FORM OR not subject to review by this court, whose power to review is
EXPRESSION (PROTECTED SPEECH), OR ELECTION “limited only to final decisions, rulings and orders of the
PROPAGANDA/POLITICAL ADVERTISEMENT[;] COMELEC En Banc rendered in the exercise of its
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A adjudicatory or quasi-judicial power.”23 Instead, respondents
FORM OF EXPRESSION, WHETHER THE COMELEC claim that the assailed notice and letter are reviewable only
POSSESSES THE AUTHORITY TO REGULATE THE SAME[;] by COMELEC itself pursuant to Article IX-C, Section 2(3) of
B. WHETHER THIS FORM OF EXPRESSION MAY BE
the Constitution24 on COMELEC’s power to decide all
REGULATED[;]
questions affecting elections.25 Respondents invoke the cases
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY of Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano,
ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY Jr. v.
2013 ORDER BY THE COMELEC LAW DEPARTMENT
_______________
VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH
AND STATE[;] [AND] 21 Id., at pp. 62-64.
V. 22 See Macabago v. Commission on Elections, 440 Phil. 683, 690-692; 392
WHETHER THE ACTION OF THE PETITIONERS IN SCRA 178, 183 (2002) [Per J. Callejo, Sr., En Banc].
POSTING ITS TARPAULIN VIOLATES THE CONSTITUTIONAL 23 Rollo, p. 63.
PRINCIPLE OF SEPARATION OF CHURCH AND STATE. 24 Const., Art. IX-C, Sec. 2(3):
Sec. 2. The Commission on Elections shall exercise the following powers
I and functions:
....
PROCEDURAL ISSUES (3) Decide, except those involving the right to vote, all questions affecting
I.A elections, including determination of the number and location of polling
places, appointment of election officials and inspectors, and registration of
This court’s jurisdiction over COMELEC cases voters.
33 25 Rollo, p. 64.
VOL. 747, JANUARY 21, 2015 33 26 398 Phil. 257; 344 SCRA 358 (2000) [Per J. Pardo, En Banc].
27 G.R. No. 161418, April 28, 2004, 428 SCRA 321 [Per J. Carpio, En 35
Banc]. VOL. 747, JANUARY 21, 2015 35
34
The Diocese of Bacolod vs. Commission on Elections
34 SUPREME COURT REPORTS ANNOTATED
However, in the next case cited by respondents, Repol v.
The Diocese of Bacolod vs. Commission on Elections
COMELEC, this court provided exceptions to this general
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. rule. Repol was another election protest case, involving the
COMELEC,30 to illustrate how judicial intervention is limited mayoralty elections in Pagsanghan, Samar.36 This time, the
to final decisions, orders, rulings and judgments of the case was brought to this court because the COMELEC First
COMELEC En Banc.31 Division issued a status quo ante order against the Regional
These cases are not applicable. Trial Court executing its decision pending appeal.37 This
In Ambil, Jr. v. COMELEC, the losing party in the
court’s ponencia discussed the general rule enunciated
gubernatorial race of Eastern Samar filed the election in Ambil, Jr. that it cannot take jurisdiction to review
protest.32 At issue was the validity of the promulgation of a interlocutory orders of a COMELEC Division.38 However,
COMELEC Division resolution.33No motion for consistent with ABS-CBN Broadcasting Corporation v.
reconsideration was filed to raise this issue before the
COMELEC,39 it clarified the exception:
COMELEC En Banc. This court declared that it did not have This Court, however, has ruled in the past that this procedural
jurisdiction and clarified: requirement [of filing a motion for reconsideration] may be glossed
We have interpreted [Section 7, Article IX-A of the over to prevent miscarriage of justice, when the issue involves the
Constitution]34 to mean final orders, rulings and decisions of the principle of social justice or the protection of labor, when the
COMELEC rendered in the exercise of its adjudicatory or quasi- decision or resolution sought to be set aside is a nullity, or when the
judicial powers.” This decision must be a final decision or need for relief is extremely urgent and certiorari is the only
resolution of the Comelec En Banc, not of a division, certainly not adequate and speedy remedy available.40
an interlocutory order of a division. The Supreme Court has no
power to review via certiorari, an interlocutory order or even a final
Based on ABS-CBN, this court could review orders and
resolution of a Division of the Commission on
decisions of COMELEC — in electoral contests — despite not
Elections.35 (Emphasis in the original, citations omitted)
being reviewed by the COMELEC En Banc, if:
_______________ 1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
28 548 Phil. 639; 520 SCRA 88 (2007) [Per J. Carpio, En Banc]. 3) The issue involves the protection of labor;
29 577 Phil. 622; 554 SCRA 755 (2008) [Per J. Azcuna, En Banc].
30 G.R. No. 193846, April 12, 2011, 648 SCRA 561 [Per J. Nachura, En
_______________
Banc].
31 Rollo, p. 64.
36 Repol v. COMELEC, supra note 27 at p. 322.
32 Ambil, Jr. v. Commission on Elections, supra note 26 at p. 271; p. 367.
37 Id., at p. 325.
33 Id., at pp. 271-272; p. 367.
38 Id., at p. 330.
34 Sec. 7. . . . Unless otherwise provided by this Constitution or by law,
39 380 Phil. 780; 323 SCRA 811 (2000) [Per J. Panganiban, En Banc].
any decision, order, or ruling of each Commission may be brought to the
40 Repol v. Commission on Elections, supra at p. 330, citing ABS-CBN v.
Supreme Court on certiorari by the aggrieved party within thirty days from
Commission on Elections, id., at pp. 789-790; p. 820.
receipt of a copy thereof.
36
35 Ambil, Jr. v. Commission on Elections, supra at p. 274; pp. 365-366.
36 SUPREME COURT REPORTS ANNOTATED 37
The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 37
4) The decision or resolution sought to be set aside is a The Diocese of Bacolod vs. Commission on Elections
nullity; or exceptions in ABS-CBN: The assailed resolution was a
5) The need for relief is extremely urgent and certiorari is nullity.47
the only adequate and speedy remedy available. Finally, respondents cited Cayetano v. COMELEC, a
recent election protest case involving the mayoralty
Ultimately, this court took jurisdiction in Repol and candidates of Taguig City.48 Petitioner assailed a resolution of
decided that the status quo ante order issued by the the COMELEC denying her motion for reconsideration to
COMELEC Division was unconstitutional. dismiss the election protest petition for lack of form and
Respondents also cite Soriano, Jr. v. COMELEC. This case substance.49 This court clarified the general rule and refused
was also an election protest case involving candidates for the to take cognizance of the review of the COMELEC order.
city council of Muntinlupa City.41 Petitioners in Soriano, While recognizing the exceptions in ABS-CBN, this court
Jr. filed before this court a petition for certiorari against an ruled that these exceptions did not apply.50
interlocutory order of the COMELEC First Division.42 While Ambil, Jr., Repol, Soriano, Jr.,
the petition was pending in this court, the COMELEC First Blanco, and Cayetano cited by respondents do not
Division dismissed the main election protest operate as precedents to oust this court from taking
case.43 Soriano applied the general rule that only final orders jurisdiction over this case. All these cases cited involve
should be questioned with this court. The ponencia for this election protests or disqualification cases filed by the
court, however, acknowledged the exceptions to the general losing candidate against the winning candidate.
rule in ABS-CBN.44 In the present case, petitioners are not candidates
Blanco v. COMELEC, another case cited by respondents, seeking for public office. Their petition is filed to assert
was a disqualification case of one of the mayoralty candidates their fundamental right to expression.
of Meycauayan, Bulacan.45 The COMELEC Second Division Furthermore, all these cases cited by respondents
ruled that petitioner could not qualify for the 2007 elections pertained to COMELEC’s exercise of its adjudicatory or quasi-
due to the findings in an administrative case that he engaged judicial power. This case pertains to acts of COMELEC in the
in vote buying in the 1995 elections.46 No motion for implementation of its regulatory powers. When it issued the
reconsideration was filed before the COMELEC En Banc. notice and letter, the COMELEC was
This court, however, took cognizance of this case applying one allegedly enforcing election laws.
of the
_______________
_______________
47 Id., at p. 630; p. 761.
48 Cayetano v. Commission on Elections, supra note 30 at p. 563.
41 Soriano, Jr. v. Commission on Elections, supra note 28 at p. 89.
49 Id., at p. 566.
42 Id., at p. 643; p. 91.
50 Id., at p. 571.
43 Id.
38
44 Id., at p. 656; p. 105.
45 Blanco v. Commission on Elections, supra note 29 at p. 627; p. 758. 38 SUPREME COURT REPORTS ANNOTATED
46 Id.
The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 39
I.B The Diocese of Bacolod vs. Commission on Elections
Rule 65, grave abuse of discretion, revision of the basic text of the Constitution. The zeal with
and limitations on political speech which we protect this kind of speech does not depend on our
evaluation of the cogency of the message. Neither do we assess
The main subject of this case is an alleged constitutional whether we should protect speech based on the motives of
violation: the infringement on speech and the “chilling effect” COMELEC. We evaluate restrictions on freedom of
caused by respondent COMELEC’s notice and letter. expression from their effects. We protect both speech and
Petitioners allege that respondents committed grave abuse medium because the quality of this freedom in practice will
of discretion amounting to lack or excess of jurisdiction in define the quality of deliberation in our democratic society.
issuing the notice51 dated February 22, 2013 and letter52 dated COMELEC’s notice and letter affect preferred speech.
February 27, 2013 ordering the removal of the tarpaulin. 53 It Respondents’ acts are capable of repetition. Under the
is their position that these infringe on their fundamental right conditions in which it was issued and in view of the novelty of
to freedom of expression and violate the principle of this case, it could result in a “chilling effect” that would affect
separation of church and state and, thus, are other citizens who want their voices heard on issues during
unconstitutional.54 the elections. Other citizens who wish to express their views
The jurisdiction of this court over the subject matter is regarding the election and other related issues may choose not
determined from the allegations in the petition. Subject to, for fear of reprisal or sanction by the COMELEC.
matter jurisdiction is defined as the authority “to hear and Direct resort to this court is allowed to avoid such
determine cases of the general class to which the proceedings proscribed conditions. Rule 65 is also the procedural platform
in question belong and is conferred by the sovereign authority for raising grave abuse of discretion.
which organizes the court and defines its powers.”55 Definitely, Both parties point to constitutional provisions on
the subject matter in this case is different from the cases cited jurisdiction. For petitioners, it referred to this court’s
by respondents. expanded exercise of certiorarias provided by the Constitution
Nothing less than the electorate’s political speech will be as follows:
affected by the restrictions imposed by COMELEC. Political Judicial power includes the duty of the courts of justice to settle
speech is motivated by the desire to be heard and understood, actual controversies involving rights which are legally demandable
to move people to action. It is concerned with the sovereign and enforceable, and to determine whether or not there has been a
right to change the contours of power whether through the grave abuse of discretion amounting to lack or excess of jurisdiction
election of representatives in a republican government or the on the part of any branch or instrumentality of the
Government.56 (Emphasis supplied)
_______________
On the other hand, respondents relied on its constitutional
51 Rollo, p. 19. mandate to decide all questions affecting elections. Article IX-
52 Id., at p. 23.
53 Id., at pp. 3-4. C, Section 2(3) of the Constitution, provides:
54 Id., at pp. 8-9.
55 Reyes v. Diaz, 73 Phil. 484, 486 (1941) [Per J. Moran, En Banc]. _______________
39
56 Const., Art. VIII, Sec. 1, par. (2). 41
40 VOL. 747, JANUARY 21, 2015 41
40 SUPREME COURT REPORTS ANNOTATED The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections During elections, we have the power and the duty to correct
Sec. 2. The Commission on Elections shall exercise the any grave abuse of discretion or any act tainted with
following powers and functions: unconstitutionality on the part of any government branch or
....
instrumentality. This includes actions by the COMELEC.
(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
Furthermore, it is this court’s constitutional mandate to
location of polling places, appointment of election officials and protect the people against government’s infringement of their
inspectors, and registration of voters. fundamental rights. This constitutional mandate outweighs
the jurisdiction vested with the COMELEC.
Respondents’ reliance on this provision is misplaced. It will, thus, be manifest injustice if the court does not take
We are not confronted here with the question of whether jurisdiction over this case.
the COMELEC, in its exercise of jurisdiction, gravely abused
it. We are confronted with the question as to whether the I.C
COMELEC had any jurisdiction at all with its acts Hierarchy of Courts
threatening imminent criminal action effectively abridging
meaningful political speech. This brings us to the issue of whether petitioners violated
It is clear that the subject matter of the controversy is the the doctrine of hierarchy of courts in directly filing their
effect of COMELEC’s notice and letter on free speech. This petition before this court.
does not fall under Article IX-C, Section 2(3) of the Respondents contend that petitioners’ failure to file the
Constitution. The use of the word “affecting” in this provision proper suit with a lower court of concurrent jurisdiction is
cannot be interpreted to mean that COMELEC has the sufficient ground for the dismissal of their petition.57 They add
exclusive power to decide any and all questions that arise that observation of the hierarchy of courts is compulsory,
during elections. COMELEC’s constitutional competencies citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
during elections should not operate to divest this court of its claim that while there are exceptions to the general rule on
own jurisdiction. hierarchy of courts, none of these are present in this case.59
The more relevant provision for jurisdiction in this case is On the other hand, petitioners cite Fortich v. Corona60 on
Article VIII, Section 5(1) of the Constitution. This provision this court’s discretionary power to take cognizance of a
provides for this court’s original jurisdiction over petitions petition filed directly to it if warranted by “compelling
for certiorari and prohibition. This should be read alongside reasons, or [by] the nature and importance of the issues
the expanded jurisdiction of the court in Article VIII, Section raised. . . .”61
1 of the Constitution.
_______________
Certainly, a breach of the fundamental right of expression
by COMELEC is grave abuse of discretion. Thus, the 57 Rollo, p. 66.
constitutionality of the notice and letter coming from 58 495 Phil. 422, 432; 455 SCRA 460, 470 (2005) [Per J. Austria-Martinez,
Second Division].
COMELEC is within this court’s power to review.
59 Rollo, p. 67. 63 G.R. No. 159508, August 29, 2012, 679 SCRA 237 [Per J. Bersamin,
60 352 Phil. 461; 298 SCRA 679 (1998) [Per J. Martinez, Second Division]. First Division].
61 Id., at p. 480; pp. 690-91; Rollo, p. 99. 64 Id., at p. 250.
42 65 240 Phil. 719; 156 SCRA 753 (1987) [Per J. Narvasa, First Division].
42 SUPREME COURT REPORTS ANNOTATED 43
The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 43
Petitioners submit that there are “exceptional and The Diocese of Bacolod vs. Commission on Elections
compelling reasons to justify a direct resort [with] this
Court.”62 Court of Appeals, or before constitutional or other tribunals,
In Bañez, Jr. v. Concepcion,63 we explained the necessity of bodies or agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an
the application of the hierarchy of courts:
extraordinary writ is also within the competence of the Court of
The Court must enjoin the observance of the policy on the
Appeals or a Regional Trial Court, it is in either of these courts that
hierarchy of courts, and now affirms that the policy is not to be
the specific action for the writ’s procurement must be presented.
ignored without serious consequences. The strictness of the policy
This is and should continue to be the policy in this regard, a policy
is designed to shield the Court from having to deal with causes that
that courts and lawyers must strictly observe.66 (Emphasis omitted)
are also well within the competence of the lower courts, and thus
leave time to the Court to deal with the more fundamental and more
essential tasks that the Constitution has assigned to it. The Court The doctrine that requires respect for the hierarchy of
may act on petitions for the extraordinary writs of certiorari, courts was created by this court to ensure that every level of
prohibition and mandamus only when absolutely necessary or the judiciary performs its designated roles in an effective and
when serious and important reasons exist to justify an exception to efficient manner. Trial courts do not only determine the facts
the policy.64 from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which
In Bañez, we also elaborated on the reasons why lower may include the validity of an ordinance, statute, or even an
courts are allowed to issue writs of certiorari, prohibition, executive issuance in relation to the Constitution.67 To
and mandamus, citing Vergara v. Suelto:65 effectively perform these functions, they are territorially
The Supreme Court is a court of last resort, and must so remain organized into regions and then into branches. Their writs
if it is to satisfactorily perform the functions assigned to it by the generally reach within those territorial boundaries.
fundamental charter and immemorial tradition. It cannot and Necessarily, they mostly perform the all-important task of
should not be burdened with the task of dealing with causes in the inferring the facts from the evidence as these are physically
first instance. Its original jurisdiction to issue the so-called
presented before them. In many instances, the facts occur
extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefore.
within their territorial jurisdiction, which properly present
Hence, that jurisdiction should generally be exercised relative to the ‘actual case’ that makes ripe a determination of the
actions or proceedings before the constitutionality of such action. The consequences, of course,
would be national in scope. There are, however, some cases
_______________ where resort to courts at their level would not be practical
considering their deci-
62 Rollo, p. 100.
_______________
66 Id., at pp. 732-733; p. 766. _______________
67 Ynot v. Intermediate Appellate Court, 232 Phil. 615, 621; 148 SCRA
659, 666 (1987) [Per J. Cruz, En Banc]. See J.M. Tuason & Co., Inc. v. Court 68 Roque, Jr. v. COMELEC, 615 Phil. 149, 201; 599 SCRA 69, 112 (2009)
of Appeals, 113 Phil. 673, 681; 3 SCRA 696, 703 (1961) [Per J. J.B.L. Reyes, En [Per J.Velasco, Jr., En Banc].
Banc]; Espiritu v. Fugoso, 81 Phil. 637, 639 (1948) [Per J. Perfecto, En Banc]. 69 Id., citing Chavez v. National Housing Authority, 557 Phil. 29, 72; 530
44 SCRA 235, 286 (2007) [Per J. Velasco, Jr., En Banc].
44 SUPREME COURT REPORTS ANNOTATED 45
The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 45
sions could still be appealed before the higher courts, such The Diocese of Bacolod vs. Commission on Elections
as the Court of Appeals. and specifically raised in the petition.”70 As correctly
The Court of Appeals is primarily designed as an appellate pointed out by petitioners,71 we have provided exceptions to
court that reviews the determination of facts and law made by this doctrine:
the trial courts. It is collegiate in nature. This nature ensures First, a direct resort to this court is allowed when there are
more standpoints in the review of the actions of the trial court. genuine issues of constitutionality that must be addressed at
But the Court of Appeals also has original jurisdiction over the most immediate time. A direct resort to this court includes
most special civil actions. Unlike the trial courts, its writs can availing of the remedies of certiorari and prohibition to assail
have a nationwide scope. It is competent to determine facts the constitutionality of actions of both legislative and
and, ideally, should act on constitutional issues that may not executive branches of the government.72
necessarily be novel unless there are factual questions to In this case, the assailed issuances of respondents
determine. prejudice not only petitioners’ right to freedom of expression
This court, on the other hand, leads the judiciary by in the present case, but also of others in future similar cases.
breaking new ground or further reiterating — in the light of The case before this court involves an active effort on the part
new circumstances or in the light of some confusions of bench of the electorate to reform the political landscape. This has
or bar — existing precedents. Rather than a court of first become a rare occasion when private citizens actively engage
instance or as a repetition of the actions of the Court of the public in political discourse. To quote an eminent political
Appeals, this court promulgates these doctrinal devices in theorist:
order that it truly performs that role. [T]he theory of freedom of expression involves more than a
In other words, the Supreme Court’s role to interpret the technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of society, a faith
Constitution and act in order to protect constitutional rights
and a whole way of life. The theory grew out of an age that was
when these become exigent should not be emasculated by the
awakened and invigorated by the idea of new society in which man’s
doctrine in respect of the hierarchy of courts. That has never mind was free, his fate determined by his own powers of reason, and
been the purpose of such doctrine. his prospects of creating a rational and enlightened civilization
Thus, the doctrine of hierarchy of courts is not an iron-clad virtually unlimited. It is put forward as a prescription for attaining
rule.68 This court has “full discretionary power to take a creative, progressive, exciting and in-
cognizance and assume jurisdiction [over] special civil actions
for certiorari . . .filed directly with it for exceptionally _______________
compelling reasons69 or if warranted by the nature of the 70 Id., at p. 201; pp. 112-113, citing Cabarles v. Maceda, 545 Phil. 210,
issues clearly 224; 516 SCRA 303, 321 (2007) [Per J. Quisumbing, Second Division].
71 The counsels for petitioners are Atty. Ralph A. Sarmiento, Atty. v. COMELEC, 137 Phil. 471, 493-494; 27 SCRA 835, 858 (1969)
Raymundo T. Pandan, Jr., and Atty. Mitchelle M. Abella. [Per J. Fernando, En Banc].
72 See Aquino III v. COMELEC, G.R. No. 189793, April 7, 2010, 617 74 See Initiatives for Dialogue and Empowerment through Alternative
SCRA 623, 637-638 [Per J. Perez, En Banc]; Magallona v. Ermita, G.R. No. Legal Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities
187167, August 16, 2011, 655 SCRA 476, 487-488 [Per J. Carpio, En Banc]. Management Corporation (PSALM), G.R. No. 192088, October 9, 2012, 682
46 SCRA 602, 633 [Per J. Villarama, Jr., En Banc]; Agan, Jr. v. PIATCO, 450
46 SUPREME COURT REPORTS ANNOTATED Phil. 744, 805; 402 SCRA 612, 646 (2003) [Per J. Puno, En Banc].
47
The Diocese of Bacolod vs. Commission on Elections
VOL. 747, JANUARY 21, 2015 47
tellectually robust community. It contemplates a mode of life
that, through encouraging toleration, skepticism, reason and The Diocese of Bacolod vs. Commission on Elections
initiative, will allow man to realize his full potentialities. It spurns the right to vote for one’s chosen candidate, but also the
the alternative of a society that is tyrannical, conformist, irrational right to vocalize that choice to the public in general, in the
and stagnant.73 hope of influencing their votes. It may be said that in an
election year, the right to vote necessarily includes the right
In a democracy, the citizen’s right to freely participate in to free speech and expression. The protection of these
the exchange of ideas in furtherance of political decision- fundamental constitutional rights, therefore, allows for the
making is recognized. It deserves the highest protection the immediate resort to this court.
courts may provide, as public participation in nation-building Third, cases of first impression75 warrant a direct resort to
is a fundamental principle in our Constitution. As such, their this court. In cases of first impression, no jurisprudence yet
right to engage in free expression of ideas must be given exists that will guide the lower courts on this matter.
immediate protection by this court. In Government of the United States v. Purganan,76 this court
A second exception is when the issues involved are of took cognizance of the case as a matter of first impression that
transcendental importance.74 In these cases, the imminence may guide the lower courts:
and clarity of the threat to fundamental constitutional rights In the interest of justice and to settle once and for all the
outweigh the necessity for prudence. The doctrine relating to important issue of bail in extradition proceedings, we deem it best
constitutional issues of transcendental importance prevents to take cognizance of the present case. Such proceedings constitute
courts from the paralysis of procedural niceties when clearly a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.77
faced with the need for substantial protection.
In the case before this court, there is a clear threat to the
This court finds that this is indeed a case of first impression
paramount right of freedom of speech and freedom of
involving as it does the issue of whether the right of suffrage
expression which warrants invocation of relief from this court.
includes the right of freedom of expression. This is a question
The principles laid down in this decision will likely influence
which this court has yet to provide substantial answers to,
the discourse of freedom of speech in the future, especially in
through jurisprudence. Thus, direct resort to this court is
the context of elections. The right to suffrage not only includes
allowed.
_______________
_______________
73 Thomas I. Emerson, Toward a General Theory of the First
Amendment, Faculty Scholarship Series, Paper 2796 (1963), cited in Gonzales
75 See Soriano v. Laguardia, 605 Phil. 43, 99; 587 SCRA 79, 102 (2009) 78 G.R. No. 112497, August 4, 1994, 235 SCRA 135 [Per J. Cruz, En
[Per J.Velasco, Jr., En Banc]; See also Mallion v. Alcantara, 536 Phil. 1049, Banc].
1053; 506 SCRA 336, 341 (2006) [Per J. Azcuna, Second Division]. 79 Id., at p. 140.
76 438 Phil. 417; 389 SCRA 623 (2002) [Per J. Panganiban, En Banc]. 80 114 Phil. 318; 4 SCRA 386 (1962) [Per J. J.B.L. Reyes, En Banc].
77 Id., at p. 439; pp. 651-652. 81 Id., at p. 322; p. 389.
48 49
48 SUPREME COURT REPORTS ANNOTATED VOL. 747, JANUARY 21, 2015 49
The Diocese of Bacolod vs. Commission on Elections The Diocese of Bacolod vs. Commission on Elections
Fourth, the constitutional issues raised are better decided In this case, if petitioners sought to annul the actions of
by this court. In Drilon v. Lim,78 this court held that: COMELEC through pursuing remedies with the lower courts,
. . . it will be prudent for such courts, if only out of a becoming any ruling on their part would not have been binding for other
modesty, to defer to the higher judgment of this Court in the citizens whom respondents may place in the same situation.
consideration of its validity, which is better determined after a Besides, this court affords great respect to the Constitution
thorough deliberation by a collegiate body and with the concurrence and the powers and duties imposed upon COMELEC. Hence,
of the majority of those who participated in its
a ruling by this court would be in the best interest of
discussion.79 (Citation omitted)
respondents, in order that their actions may be guided
accordingly in the future.
In this case, it is this court, with its constitutionally
Seventh, petitioners rightly claim that they had no other
enshrined judicial power, that can rule with finality on
plain, speedy, and adequate remedy in the ordinary course of
whether COMELEC committed grave abuse of discretion or
law that could free them from the injurious effects of
performed acts contrary to the Constitution through the
respondents’ acts in violation of their right to freedom of
assailed issuances.
expression.
Fifth, the time element presented in this case cannot be
In this case, the repercussions of the assailed issuances on
ignored. This case was filed during the 2013 election period.
this basic right constitute an exceptionally compelling reason
Although the elections have already been concluded, future
to justify the direct resort to this court. The lack of other
cases may be filed that necessitate urgency in its resolution.
sufficient remedies in the course of law alone is sufficient
Exigency in certain situations would qualify as an exception
ground to allow direct resort to this court.
for direct resort to this court.
Eighth, the petition includes questions that are “dictated
Sixth, the filed petition reviews the act of a constitutional
by public welfare and the advancement of public policy, or
organ. COMELEC is a constitutional body. In Albano v.
demanded by the broader interest of justice, or the orders
Arranz,80 cited by petitioners, this court held that “[i]t is easy
complained of were found to be patent nullities, or the appeal
to realize the chaos that would ensue if the Court of First
was considered as clearly an inappropriate remedy.”82 In the
Instance of each and every province were [to] arrogate itself
past, questions similar to these which this court ruled on
the power to disregard, suspend, or contradict any order of the
immediately despite the doctrine of hierarchy of courts
Commission on Elections: that constitutional body would be
included citizens’ right to bear arms,83government contracts
speedily reduced to impotence.”81
_______________
_______________
82 Chong v. Dela Cruz, 610 Phil. 725, 728; 593 SCRA 311, 314 (2009) 84 COMELEC v. Quijano-Padilla, 438 Phil. 72; 389 SCRA 353 (2002)
[Per J.Nachura, Third Division], citing Gelindon v. De la Rama, G.R. No. [Per J.Sandoval-Gutierrez, En Banc].
105072, December 9, 1993, 228 SCRA 322, 326-327 [Per J. Vitug, Third 85 Buklod ng Kawaning EIIB v. Zamora, 413 Phil. 281; 360 SCRA 718
Division]. (2001) [Per J. Sandoval-Gutierrez, En Banc].
83 Chavez v. Romulo, G.R. No. 157036, June 9, 2004, 431 SCRA 534 86 351 Phil. 692; 288 SCRA 447 (1998) [Per J. Mendoza, En Banc].
[Per J.Sandoval-Gutierrez, En Banc]. 51
50 VOL. 747, JANUARY 21, 2015 51
50 SUPREME COURT REPORTS ANNOTATED The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections enshrined rights but, like all fundamental rights, it is not
involving modernization of voters’ registration lists,84 and without limitations.
the status and existence of a public office.85 The case is not about a fight between the “rich” and the “poor” or
This case also poses a question of similar, if not greater between the “powerful” and the “weak” in our society but it is to me
import. Hence, a direct action to this court is permitted. a genuine attempt on the part of Congress and the Commission on
It is not, however, necessary that all of these exceptions Elections to ensure that all candidates are given an equal chance to
must occur at the same time to justify a direct resort to this media coverage and thereby be equally perceived as giving real life
to the candidates’ right of free expression rather than being viewed
court. While generally, the hierarchy of courts is respected,
as an undue restriction of that freedom. The wisdom in the
the present case falls under the recognized exceptions and, as enactment of the law, i.e., that which the legislature deems to be
such, may be resolved by this court directly. best in giving life to the Constitutional mandate, is not for the Court
to question; it is a matter that lies beyond the normal prerogatives
I.D of the Court to pass upon.87
The concept of a political question
This separate opinion is cogent for the purpose it was said.
Respondents argue further that the size limitation and its But it is not in point in this case.
reasonableness is a political question, hence not within the The present petition does not involve a dispute between the
ambit of this court’s power of review. They cite Justice Vitug’s rich and poor, or the powerful and weak, on their equal
separate opinion in Osmeña v. COMELEC86 to support their opportunities for media coverage of candidates and their right
position: to freedom of expression. This case concerns the right of
It might be worth mentioning that Section 26, Article II, of the petitioners, who are noncandidates, to post the tarpaulin in
Constitution also states that the “State shall guarantee equal their private property, as an exercise of their right of free
access to opportunities for public service, and prohibit political expression. Despite the invocation of the political question
dynasties as may be defined by law.” I see neither Article IX(C)(4)
doctrine by respondents, this court is not proscribed from
nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free
deciding on the merits of this case.
expression. In any event, the latter, being one of general In Tañada v. Cuenco,88 this court previously elaborated on
application, must yield to the specific demands of the Constitution. the concept of what constitutes a political question:
The freedom of expression concededly holds, it is true, a vantage What is generally meant, when it is said that a question is
point in hierarchy of constitutionally- political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or that
_______________
it has been specifically delegated to some other department or A political question arises in constitutional issues relating
particular officer of the gov- to the powers or competence of different agencies and
departments of the executive or those of the legislature. The
_______________
political question doctrine is used as a defense when the
87 Id., at pp. 727-728; pp. 487-488, Separate Opinion of J. Vitug. petition asks this court to nullify certain acts that are
88 103 Phil. 1051 (1957) [Per J. Concepcion, En Banc]. exclusively
52
52 SUPREME COURT REPORTS ANNOTATED _______________
The Diocese of Bacolod vs. Commission on Elections
89 Id., at p. 1067.
ernment, with discretionary power to act.89 (Emphasis omitted) 53
VOL. 747, JANUARY 21, 2015 53
It is not for this court to rehearse and reenact political The Diocese of Bacolod vs. Commission on Elections
debates on what the text of the law should be. In political
within the domain of their respective competencies, as
forums, particularly the legislature, the creation of the text of
provided by the Constitution or the law. In such situation,
the law is based on a general discussion of factual
presumptively, this court should act with deference. It will
circumstances, broadly construed in order to allow for general
decline to void an act unless the exercise of that power was so
application by the executive branch. Thus, the creation of the
capricious and arbitrary so as to amount to grave abuse of
law is not limited by particular and specific facts that affect
discretion.
the rights of certain individuals, per se.
The concept of a political question, however, never
Courts, on the other hand, rule on adversarial positions
precludes judicial review when the act of a constitutional
based on existing facts established on a specific case-to-case
organ infringes upon a fundamental individual or collective
basis, where parties affected by the legal provision seek the
right. Even assuming arguendo that the COMELEC did have
courts’ understanding of the law.
the discretion to choose the manner of regulation of the
The complementary nature of the political and judicial
tarpaulin in question, it cannot do so by abridging the
branches of government is essential in order to ensure that
fundamental right to expression.
the rights of the general public are upheld at all times. In
Marcos v. Manglapus90 limited the use of the political
order to preserve this balance, branches of government must
question doctrine:
afford due respect and deference for the duties and functions When political questions are involved, the Constitution limits
constitutionally delegated to the other. Courts cannot rush to the determination to whether or not there has been a grave abuse
invalidate a law or rule. Prudence dictates that we are careful of discretion amounting to lack or excess of jurisdiction on the part
not to veto political acts unless we can craft doctrine narrowly of the official whose action is being questioned. If grave abuse is not
tailored to the circumstances of the case. established, the Court will not substitute its judgment for that of
The case before this court does not call for the exercise of the official concerned and decide a matter which by its nature or by
prudence or modesty. There is no political question. It can be law is for the latter alone to decide.91
acted upon by this court through the expanded jurisdiction
granted to this court through Article VIII, Section 1 of the How this court has chosen to address the political question
Constitution. doctrine has undergone an evolution since the time that it had
been first invoked in Marcos v. Manglapus. Increasingly, this Many constitutional cases arise from political crises. The
court has taken the historical and social context of the case actors in such crises may use the resolution of constitutional
and the relevance of pronouncements of carefully and
_______________
narrowly tailored constitutional doctrines. This trend was
92 259 Phil. 980; 180 SCRA 496 (1989) [Per J. Cruz, En Banc].
_______________
93 G.R. No. 86649, July 12, 1990, 187 SCRA 377 [Per J. Griño-Aquino, En
Banc].
90 258 Phil. 479; 177 SCRA 668 (1989) [Per J. Cortes, En Banc].
94 359 Phil. 276; 298 SCRA 756 (1998) [Per J. Panganiban, En Banc].
91 Id., at pp. 506-507; p. 696.
95 392 Phil. 618; 338 SCRA 81 (2000) [Per J. Kapunan, En Banc].
54
96 406 Phil. 1; 353 SCRA 452 (2001) [Per J. Puno, En Banc].
54 SUPREME COURT REPORTS ANNOTATED 55
The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 55
followed in cases such as Daza v. Singson92 and Coseteng v. The Diocese of Bacolod vs. Commission on Elections
Mitra, Jr.93 issues as leverage. But the expanded jurisdiction of this
Daza and Coseteng involved a question as to the court now mandates a duty for it to exercise its power of
application of Article VI, Section 18 of the 1987 Constitution judicial review expanding on principles that may avert
involving the removal of petitioners from the Commission on catastrophe or resolve social conflict.
Appointments. In times past, this would have involved a This court’s understanding of the political question has not
quintessentially political question as it related to the been static or unbending. In Llamas v. Executive Secretary
dominance of political parties in Congress. However, in these Oscar Orbos,97 this court held:
cases, this court exercised its power of judicial review noting While it is true that courts cannot inquire into the manner in
that the requirement of interpreting the constitutional which the President’s discretionary powers are exercised or into the
provision involved the legality and not the wisdom of a wisdom for its exercise, it is also a settled rule that when the issue
manner by which a constitutional duty or power was involved concerns the validity of such discretionary powers or
exercised. This approach was again reiterated in Defensor whether said powers are within the limits prescribed by the
Santiago v. Guingona, Jr.94 Constitution, We will not decline to exercise our power of judicial
review. And such review does not constitute a modification or
In Integrated Bar of the Philippines v. Zamora,95 this court
correction of the act of the President, nor does it constitute
declared again that the possible existence of a political
interference with the functions of the President.98
question did not bar an examination of whether the exercise
of discretion was done with grave abuse of discretion. In that The concept of judicial power in relation to the concept of
case, this court ruled on the question of whether there was
the political question was discussed most extensively
grave abuse of discretion in the President’s use of his power in Francisco v. HRET.99 In this case, the House of
to call out the armed forces to prevent and suppress lawless Representatives argued that the question of the validity of the
violence. second impeachment complaint that was filed against former
In Estrada v. Desierto,96 this court ruled that the legal Chief Justice Hilario Davide was a political question beyond
question as to whether a former President resigned was not a the ambit of this court. Former Chief Justice Reynato Puno
political question even if the consequences would be to
ascertain the political legitimacy of a successor President.
elaborated on this concept in his concurring and dissenting recent case, “(t)he political question doctrine neither interposes an
opinion: obstacle to judicial determination of the rival claims. The
To be sure, the force to impugn the jurisdiction of this Court jurisdiction to delimit constitutional boundaries has been
becomes more feeble in light of the new Constitution which given to this Court. It cannot abdicate that
expanded the definition of judicial power
_______________
_______________
100 Id., at p. 1103; pp. 201-202, Concurring and Dissenting Opinion
97 279 Phil. 920; 202 SCRA 844 (1991) [Per J. Paras, En Banc]. of J. Puno.
98 Id., at p. 934; pp. 854-855. 57
99 460 Phil. 830; 415 SCRA 44 (2003) [Per J. Carpio-Morales, En Banc]. VOL. 747, JANUARY 21, 2015 57
56 The Diocese of Bacolod vs. Commission on Elections
56 SUPREME COURT REPORTS ANNOTATED obligation mandated by the 1987 Constitution, although said
The Diocese of Bacolod vs. Commission on Elections provision by no means does away with the applicability of the
principle in appropriate cases.” (Emphasis and italics supplied)
as including “the duty of the courts of justice to settle actual And in Daza v. Singson, speaking through Justice Isagani Cruz,
controversies involving rights which are legally demandable and this Court ruled:
enforceable, and to determine whether or not there has been a grave In the case now before us, the jurisdictional objection becomes
abuse of discretion amounting to lack or excess of jurisdiction on the even less tenable and decisive. The reason is that, even if we were to
part of any branch or instrumentality of the Government.” As well assume that the issue presented before us was political in nature, we
observed by retired Justice Isagani Cruz, this expanded definition would still not be precluded from resolving it under
of judicial power considerably constricted the scope of political the expanded jurisdiction conferred upon us that now covers, in
question. He opined that the language luminously suggests that proper cases, even the political question. x x x (Emphasis and italics
this duty (and power) is available even against the executive and supplied)
legislative departments including the President and the Congress, ....
in the exercise of their discretionary powers.100 (Emphasis in the In our jurisdiction, the determination of whether an issue
original, citations omitted) involves a truly political and nonjusticiable question lies in the
answer to the question of whether there are constitutionally
Francisco also provides the cases which show the evolution imposed limits on powers or functions conferred upon political
of the political question, as applied in the following cases: bodies. If there are, then our courts are duty-bound to examine
In Marcos v. Manglapus, this Court, speaking through Madame whether the branch or instrumentality of the government properly
Justice Irene Cortes, held: acted within such limits.101 (Citations omitted)
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which As stated in Francisco, a political question will not be
the Court, under previous constitutions, would have normally left considered justiciable if there are no constitutionally imposed
to the political departments to decide. x x x limits on powers or functions conferred upon political bodies.
In Bengzon v. Senate Blue Ribbon Committee, through Justice Hence, the existence of constitutionally imposed limits
Teodoro Padilla, this Court declared: justifies subjecting the official actions of the body to the
The “allocation of constitutional boundaries” is a task that this scrutiny and review of this court.
Court must perform under the Constitution. Moreover, as held in a
In this case, the Bill of Rights gives the utmost deference especially during the elections. COMELEC’s letter
to the right to free speech. Any instance that this right may threatening the filing of the election offense against
be abridged demands judicial scrutiny. It does not fall petitioners is already an
squarely into any doubt that a political question brings.
_______________
_______________
102 Rollo, p. 37.
101 Id., at pp. 910-912; pp. 150-151. 103 Rules of Court, Rule 65, Sec. 1.
58 104 Rollo, p. 65.
105 Id.
58 SUPREME COURT REPORTS ANNOTATED 106 Tan v. Macapagal, 150 Phil. 778, 784; 43 SCRA 677; 681 (1972)
The Diocese of Bacolod vs. Commission on Elections [Per J.Fernando, En Banc].
I.E 59
Exhaustion of administrative remedies VOL. 747, JANUARY 21, 2015 59
The Diocese of Bacolod vs. Commission on Elections
Respondents allege that petitioners violated the principle actionable infringement of this right. The impending
of exhaustion of administrative remedies. Respondents insist threat of criminal litigation is enough to curtail petitioners’
that petitioners should have first brought the matter to the speech.
COMELEC En Banc or any of its divisions.102 In the context of this case, exhaustion of their
Respondents point out that petitioners failed to comply administrative remedies as COMELEC suggested in their
with the requirement in Rule 65 that “there is no appeal, or pleadings prolongs the violation of their freedom of speech.
any plain, speedy, and adequate remedy in the ordinary Political speech enjoys preferred protection within our
course of law.”103 They add that the proper venue to assail the constitutional order. In Chavez v. Gonzales,107 Justice Carpio
validity of the assailed issuances was in the course of an in a separate opinion emphasized: “[i]f ever there is a
administrative hearing to be conducted by COMELEC.104 In hierarchy of protected expressions, political expression would
the event that an election offense is filed against petitioners occupy the highest rank, and among different kinds of
for posting the tarpaulin, they claim that petitioners should political expression, the subject of fair and honest elections
resort to the remedies prescribed in Rule 34 of the COMELEC would be at the top.”108 Sovereignty resides in the
Rules of Procedure.105 people.109 Political speech is a direct exercise of the
The argument on exhaustion of administrative remedies is sovereignty. The principle of exhaustion of administrative
not proper in this case. remedies yields in order to protect this fundamental right.
Despite the alleged non-exhaustion of administrative Even assuming that the principle of exhaustion of
remedies, it is clear that the controversy is already ripe for administrative remedies is applicable, the current
adjudication. Ripeness is the “prerequisite that something controversy is within the exceptions to the principle. In Chua
had by then been accomplished or performed by either branch v. Ang,110 this court held:
[or in this case, organ of government] before a court may come On the other hand, prior exhaustion of administrative remedies
into the picture.”106 may be dispensed with and judicial action may be validly resorted
Petitioners’ exercise of their right to speech, given the to immediately: (a) when there is a violation of due process;
message and their medium, had understandable relevance (b) when the issue involved is purely a legal question; (c) when the
administrative action is patently illegal amounting to lack or excess suspension of the rules is discretionary upon the
of jurisdiction; (d) when there is estoppel on the part of the court.”112 Certainly, this
administrative agency concerned; (e) when there is irreparable
injury; (f) when the respondent is a department secretary whose _______________
acts as an alter ego of the President bear the implied and assumed
approval of the lat- 111 Id., at pp. 425-426; p. 238.
112 Tiangco v. Land Bank of the Philippines, G.R. No. 153998, October 6,
_______________ 2010, 632 SCRA 256, 271 [Per J. Peralta, Second Division], quoting Heirs of
Villagracia v. Equitable Banking Corporation, 573 Phil. 212, 221; 550 SCRA
60, 69 (2008) [Per J.Nachura, Third Division]: “The rules of procedure ought
107 569 Phil. 155; 545 SCRA 441 (2008) [Per CJ. Puno, En Banc].
not to be applied in a very rigid and technical sense, for they have been adopted
108 Id., at p. 245; pp. 538-539, Separate Concurring Opinion of J. Carpio.
to help secure, not override, substantial justice. Judicial action must be guided
109 Const., Preamble.
by the principle that a party-litigant should be given the fullest opportunity to
110 614 Phil. 416; 598 SCRA 229 (2009) [Per J. Brion, Second Division].
establish the merits of his complaint or defense rather than for him to lose life,
60
liberty, honor or property on technicalities. When a rigid application of the
60 SUPREME COURT REPORTS ANNOTATED rules tends to frustrate rather than promote substantial justice, this Court is
The Diocese of Bacolod vs. Commission on Elections empowered to suspend their operation.”
ter; (g) when to require exhaustion of administrative remedies 61
would be unreasonable; (h) when it would amount to a nullification VOL. 747, JANUARY 21, 2015 61
of a claim; (i) when the subject matter is a private land in land case The Diocese of Bacolod vs. Commission on Elections
proceedings; (j) when the rule does not provide a plain, speedy and case of first impression where COMELEC has threatened
adequate remedy; or (k) when there are circumstances indicating to prosecute private parties who seek to participate in the
the urgency of judicial intervention.”111(Emphasis supplied, citation elections by calling attention to issues they want debated by
omitted)
the public in the manner they feel would be effective is one of
those cases.
The circumstances emphasized are squarely applicable
with the present case. First, petitioners allege that the II
assailed issuances violated their right to freedom of SUBSTANTIVE ISSUES
expression and the principle of separation of church and state.
This is a purely legal question. Second, the circumstances of II.A
the present case indicate the urgency of judicial intervention COMELEC had no legal basis
considering the issue then on the RH Law as well as the
to regulate expressions
upcoming elections. Thus, to require the exhaustion of made by private citizens
administrative remedies in this case would be unreasonable.
Time and again, we have held that this court “has the Respondents cite the Constitution, laws, and jurisprudence
power to relax or suspend the rules or to except a case from to support their position that they had the power to regulate
their operation when compelling reasons so warrant, or when the tarpaulin.113 However, all of these provisions pertain to
the purpose of justice requires it, [and when] [w]hat candidates and political parties. Petitioners are not
constitutes [as] good and sufficient cause that will merit candidates. Neither do they belong to any political party.
COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression time.”119 This court found that “[m]edia practitioners
exercised by a noncandidate in this case. exercising their freedom of expression during plebiscite
periods are neither the franchise
II.A.1
_______________

First, respondents cite Article IX-C, Section 4 of the 114 See Rep. Act No. 9006 (2001), Sec. 2.
Constitution, which provides: Sec. 2. Declaration of Principles.—The State shall, during the election
Section 4. The Commission may, during the election period, period, supervise or regulate the enjoyment or utilization of all franchises or
supervise or regulate the enjoyment or utilization of all franchises permits for the operation of media of communication or information to
or permits for the operation of transportation and other public guarantee or ensure equal opportunity for public service, including access to
media time and space, and the equitable right to reply, for public information
utilities, media of communication or information, all grants, special campaigns and fora among candidates and assure free, orderly, honest[,]
privileges, or concessions granted by the Government or any peaceful and credible elections.
subdivision, agency, or instrumentality thereof, including any The State shall ensure that bona fide candidates for any public office shall
government-owned or -controlled corporation or its subsidi- be free from any form of harassment and discrimination.
115 260 Phil. 565; 181 SCRA 529 (1990) [Per J. Medialdea, En Banc].
_______________ 116 Id., at p. 567; p. 530.
117 Id.
113 Rollo, pp. 70-71, 74, and 82-83. 118 Id.
62 119 Id., at p. 570; pp. 533-534.
62 SUPREME COURT REPORTS ANNOTATED 63

The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 63
ary. Such supervision or regulation shall aim to ensure equal The Diocese of Bacolod vs. Commission on Elections
opportunity, time, and space, and the right to reply, including holders nor the candidates[,]”120 thus, their right to
reasonable, equal rates therefor, for public information campaigns expression during this period may not be regulated by
and forums among candidates in connection with the objective of COMELEC.121
holding free, orderly, honest, peaceful, and credible Similar to the media, petitioners in the case at bar are
elections.114 (Emphasis supplied) neither franchise holders nor candidates.

Sanidad v. COMELEC115 involved the rules promulgated II.A.2


by COMELEC during the plebiscite for the creation of the
Cordillera Autonomous Region.116 Columnist Pablito V. Respondents likewise cite Article IX-C, Section 2(7) of the
Sanidad questioned the provision prohibiting journalists from Constitution as follows:122
covering plebiscite issues on the day before and on plebiscite Sec. 2. The Commission on Elections shall exercise the
day.117 Sanidad argued that the prohibition was a violation of following powers and functions:
the “constitutional guarantees of the freedom of expression ....
and of the press. . . .”118 We held that the “evil sought to be (7) Recommend to the Congress effective measures to minimize
prevented by this provision is the possibility that a franchise election spending, including limitation of places where propaganda
holder may favor or give any undue advantage to a candidate materials shall be posted, and to prevent and penalize all forms
in terms of advertising space or radio or television
of election frauds, offenses, malpractices, and nuisance Similarly, Section 17 of COMELEC Resolution No. 9615,
candidates. (Emphasis supplied) the rules and regulations implementing the Fair Elections
Act, provides as follows:
Based on the enumeration made on acts that may be SECTION 17. Posting of Campaign Materials.—Parties and
penalized, it will be inferred that this provision only affects candidates may post any lawful campaign material in:
candidates. a. Authorized common poster areas in public places subject to
Petitioners assail the “Notice to Remove Campaign the requirements and/or limitations set forth in the next following
Materials” issued by COMELEC. This was followed by the section; and
assailed letter regarding the “election propaganda material b. Private places provided it has the consent of the owner
thereof.
posted on the church vicinity promoting for or against the
The posting of campaign materials in public places outside of the
candidates and party list groups. . . .”123 Section 9 of the Fair
designated common poster areas and those enumerated under
Elections Act124 on the posting of campaign materials only Section 7(g) of these Rules and the like is prohibited. Persons
mentions “parties” and “candidates”: posting the same shall be liable together with the candidates and
other persons who caused the posting. It will be presumed that the
_______________
candidates and parties caused the posting of campaign materials
120 Id. outside the
121 Id. 65
122 Rollo, p. 84. VOL. 747, JANUARY 21, 2015 65
123 Id., at p. 23. The Diocese of Bacolod vs. Commission on Elections
124 Rep. Act No. 9006 (2001).
64
common poster areas if they do not remove the same within
64 SUPREME COURT REPORTS ANNOTATED three (3) days from notice which shall be issued by the Election
Officer of the city or municipality where the unlawful election
The Diocese of Bacolod vs. Commission on Elections propaganda are posted or displayed.
Sec. 9. Posting of Campaign Materials.—The COMELEC may Members of the PNP and other law enforcement agencies called
authorize political parties and party list groups to erect common upon by the Election Officer or other officials of the COMELEC
poster areas for their candidates in not more than ten (10) public shall apprehend the violators caught in the act, and file the
places such as plazas, markets, barangay centers and the like, appropriate charges against them. (Emphasis supplied)
wherein candidates can post, display or exhibit election
propaganda: Provided, That the size of the poster areas shall not
Respondents considered the tarpaulin as a campaign
exceed twelve (12) by sixteen (16) feet or its equivalent.
material in their issuances. The above provisions regulating
Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten the posting of campaign materials only apply to candidates
(10) public places, the size of which shall not exceed four (4) by six and political parties, and petitioners are neither of the two.
(6) feet or its equivalent. Section 3 of Republic Act No. 9006 on “Lawful Election
Candidates may post any lawful propaganda material in private Propaganda” also states that these are “allowed for all
places with the consent of the owner thereof, and in public places or registered political parties, national, regional, sectoral parties
property which shall be allocated equitably and impartially among or organizations participating under the party list elections
the candidates. (Emphasis supplied) and for all bona fidecandidates seeking national and local
elective positions subject to the limitation on authorized
expenses of candidates and political parties. . . .” Section 6 of candidates, unlike petitioners in the instant case.
COMELEC Resolution No. 9615 provides for a similar Moreover, the subject matter of National Press Club, Section
wording. 11(b) of Republic Act No. 6646,129only refers to a particular
These provisions show that election propaganda refers to kind of media such as newspapers, radio broadcasting, or
matter done by or on behalf of and in coordination with television.130
candidates and political parties. Some level of coordination
_______________
with the candidates and political parties for whom the election
propaganda are released would ensure that these candidates 126 G.R. No. 102653, March 5, 1992, 207 SCRA 1 [Per J. Feliciano, En
and political parties maintain within the authorized expenses Banc].
limitation. 127 Rollo, p. 82.
128 National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992,
The tarpaulin was not paid for by any candidate or political
207 SCRA 1, 6 [Per J. Feliciano, En Banc].
party.125 There was no allegation that petitioners coordinated 129 The Electoral Reforms Law of 1987.
with any of the persons named in the tarpaulin regarding its 130 Rep. Act No. 6646 (1988), Sec. 11(b).
posting. On the other hand, petitioners posted the tarpaulin Sec. 11 Prohibited Forms of Election Propaganda.—In addition to the
forms of election propaganda prohibited under Section 85 of Batas Pambansa
as part of their advocacy against the RH Law. Blg. 881, it shall be unlawful:
....
_______________
b) for any newspaper, radio broadcasting or television station, other
mass media, or any person making use of the mass media to sell or to give free
125 Rollo, p. 106. of charge print space or air time for campaign or other political purposes
66 except to the Commission as provided under Sections 90 and 92 of Batas
66 SUPREME COURT REPORTS ANNOTATED Pambansa Blg. 881. Any mass media columnist, commentator, announcer or
The Diocese of Bacolod vs. Commission on Elections personality who is a candi-
Respondents also cite National Press Club v.
67
COMELEC in arguing that its regulatory power under the
126
VOL. 747, JANUARY 21, 2015 67
Constitution, to some extent, set a limit on the right to free
speech during election period.127 The Diocese of Bacolod vs. Commission on Elections
National Press Club involved the prohibition on the sale Justice Feliciano emphasized that the provision did not
and donation of space and time for political advertisements, infringe upon the right of reporters or broadcasters to air their
limiting political advertisements to COMELEC-designated commentaries and opinions regarding the candidates, their
space and time. This case was brought by representatives of qualifications, and program for government. Compared
mass media and two candidates for office in the 1992 to Sanidad wherein the columnists lost their ability to give
elections. They argued that the prohibition on the sale and their commentary on the issues involving the
donation of space and time for political advertisements is plebiscite, National Press Club does not involve the same
tantamount to censorship, which necessarily infringes on the infringement.
freedom of speech of the candidates.128 In the case at bar, petitioners lost their ability to give a
This court upheld the constitutionality of the COMELEC commentary on the candidates for the 2013 national elections
prohibition in National Press Club. However, this case because of the COMELEC notice and letter. It was not merely
does not apply as most of the petitioners were electoral
a regulation on the campaigns of candidates vying for public political party convention shall not be construed as part of any
office. Thus, National Press Club does not apply to this case. election campaign or partisan political activity contemplated under
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise this Article. (Emphasis supplied)
known as the Omnibus Election Code, defines an “election
campaign” as follows: True, there is no mention whether election campaign is
.... limited only to the candidates and political parties
(b) The term “election campaign” or “partisan political themselves. The focus of the definition is that the act must be
activity” refers to an act designed to promote the election or defeat “designed to promote the election or defeat of a particular
of a particular candidate or candidates to a public office which shall candidate or candidates to a public office.”
include: In this case, the tarpaulin contains speech on a matter of
(1) Forming organizations, associations, clubs, committees or public concern, that is, a statement of either appreciation or
other groups of persons for the purpose of soliciting votes and/or criticism on votes made in the passing of the RH Law. Thus,
undertaking any campaign for or against a candidate;
petitioners invoke their right to freedom of expression.
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or II.B
against a candidate; The violation of the constitutional right
(3) Making speeches, announcements or commentaries, or to freedom of speech and expression
holding interviews for or against the election of any candidate for
public office; Petitioners contend that the assailed notice and letter for
the removal of the tarpaulin violate their fundamental right
_______________
to freedom of expression.
date for any elective public office shall take a leave of absence from his On the other hand, respondents contend that the tarpaulin
work as such during the campaign period. is an election propaganda subject to their regulation pursuant
68 69
68 SUPREME COURT REPORTS ANNOTATED VOL. 747, JANUARY 21, 2015 69
The Diocese of Bacolod vs. Commission on Elections The Diocese of Bacolod vs. Commission on Elections
(4) Publishing or distributing campaign literature or materials to their mandate under Article IX-C, Section 4 of the
designed to support or oppose the election of any candidate; or Constitution. Thus, the assailed notice and letter ordering its
(5) Directly or indirectly soliciting votes, pledges or support for removal for being oversized are valid and constitutional.131
or against a candidate.
The foregoing enumerated acts if performed for the purpose of II.B.1
enhancing the chances of aspirants for nomination for candidacy to
a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan
Fundamental to the consideration of this issue is Article
election activity. III, Section 4 of the Constitution:
Public expressions or opinions or discussions of probable issues Section 4. No law shall be passed abridging the freedom of
in a forthcoming election or on attributes of or criticisms against speech, of expression, or of the press, or the right of the people
probable candidates proposed to be nominated in a forthcoming peaceably to assemble and petition the government for redress of
grievances.132
surveys.139 The right to freedom of expression was similarly
No law. . . upheld in this case and, consequently, the assailed resolution
While it is true that the present petition assails not a law was nullified and set aside.140
but an opinion by the COMELEC Law Department, this court . . . shall be passed abridging. . .
has applied Article III, Section 4 of the Constitution even to All regulations will have an impact directly or indirectly on
governmental acts. expression. The prohibition against the abridgment of speech
In Primicias v. Fugoso,133 respondent Mayor applied by should not mean an absolute prohibition against regulation.
analogy Section 1119 of the Revised Ordinances of 1927 of The primary and incidental burden on speech must be
Manila for the public meeting and assembly organized by weighed against a compelling state interest clearly allowed in
petitioner Primicias.134Section 1119 requires a Mayor’s permit the Constitution. The test depends on the relevant theory of
for the use of streets and public places for purposes such as speech implicit in the kind of society framed by our
Constitution.
_______________
. . . of expression. . .
131 Rollo, pp. 40 and 47. Our Constitution has also explicitly included the freedom
132 This right is also found under Article 19 of The Universal Declaration of expression, separate and in addition to the freedom of
of Human Rights in that “[e]veryone has the right to freedom of opinion and speech and of the press provided in the US Constitution. The
expression; this right includes freedom to hold opinions without interference
word
and to seek, receive and impart information and ideas through any media and
regardless of frontiers.” The Universal Declaration of Human Rights was
_______________
adopted by the UN General Assembly on December 10, 1948. Available at
<http://www.un.org/en/documents/udhr/index.shtml> (visited March 25,
135 Id.
2013).
136 Id., at p. 75.
133 80 Phil. 75 (1948) [Per J. Feria, En Banc].
137 Id.
134 Id., at pp. 76-77.
138 Id., at p. 88.
70
139 ABS-CBN v. Commission on Elections, supra note 39 at p. 787; p. 818.
70 SUPREME COURT REPORTS ANNOTATED 140 Id., at p. 800; p. 821.
The Diocese of Bacolod vs. Commission on Elections 71
athletic games, sports, or celebration of national VOL. 747, JANUARY 21, 2015 71
holidays.135What was questioned was not a law but the The Diocese of Bacolod vs. Commission on Elections
Mayor’s refusal to issue a permit for the holding of petitioner’s “expression” was added in the 1987 Constitution by
public meeting.136Nevertheless, this court recognized the Commissioner Brocka for having a wider scope:
constitutional right to freedom of speech, to peaceful assembly MR. BROCKA: This is a very minor amendment, Mr. Presiding
and to petition for redress of grievances, albeit not Officer. On Section 9, page 2, line 29, it says: “No law shall be passed
absolute,137 and the petition for mandamusto compel abridging the freedom of speech.” I would like to recommend to the
respondent Mayor to issue the permit was granted.138 Committee the change of the word “speech” to EXPRESSION; or if
In ABS-CBN v. COMELEC, what was assailed was not a not, add the words AND EXPRESSION after the word “speech,”
because it is more expansive, it has a wider scope, and it would refer
law but COMELEC En Banc Resolution No. 98-1419 where
to means of expression other than speech.
the COMELEC resolved to approve the issuance of a
restraining order to stop ABS-CBN from conducting exit
THE PRESIDING OFFICER (Mr. Bengzon): What does the Speech is not limited to vocal communication. “[C]onduct is
Committee say? treated as a form of speech sometimes referred to as ‘symbolic
FR. BERNAS: “Expression” is more broad than speech. We speech[,]’”146 such that “‘when ‘speech’ and ‘nonspeech’
accept it. elements are combined in the same course of conduct,’ the
MR. BROCKA: Thank you.
‘com-
THE PRESIDING OFFICER (Mr. Bengzon): Is it accepted?
FR. BERNAS: Yes. _______________
THE PRESIDING OFFICER (Mr. Bengzon): Is there any
objection? (Silence) The Chair hears none; the amendment is 143 There are, of course, theories of the fundamental right to expression
approved. that finds the individual’s right to express as also part of the core value
FR. BERNAS: So, that provision will now read: “No law shall be protected by this provision. See for instance Daniel Mark Cohen, Unhappy
Anniversary: Thirty Years since Miller v. California: The Legacy of the
passed abridging the freedom of speech, expression or of the press .
Supreme Court’s Misjudgment on Obcenity Part, 15 St. Thomas L. Rev. 545,
. . .”141 638 (2003). This provides that “[a]lthough speech is a form of communication,
communication does not necessarily constitute speech.” The article states: “A
Speech may be said to be inextricably linked to freedom man may communicate (1) the conceptions of his mind through words, (2) his
itself as “[t]he right to think is the beginning of freedom, and emotions through facial expressions and body posture, and (3) the perception
of his senses through artistic renditions or photographs. Words, facial
speech must be protected from the government because expressions, and pictures are all communicative. But only words, as the
speech is the beginning of thought.”142 vehicle upon which ideas are vitally dependent for their successful
conveyance, are comprehended in the word ‘speech.’”
_______________ 144 Heidi M. Hurd, Sovereignty in Silence, 99 YALE L. J. 945, 954 (1990).
145 Hugh Baxter, System and Lifeworld in Habermas’s Theory of Law, 23
141 Record of the 1986 Constitutional Commission, R.C.C. No. 33, Vol. I, Cardozo L. Rev. 473, 499 (2002).
July 18, 1986. 146 Joshua Waldman, Symbolic Speech and Social Meaning, 97 Colum. L.
142 Freedom of Speech and Expression, 116 Harv. L. Rev. 272, 277 Rev. 1844, 1847 (1997).
(2002), quoting Justice Kennedy in Ashcroft v. Free Speech Coalition, 122 S. 73
Ct. 1389, 1403 (2002). VOL. 747, JANUARY 21, 2015 73
72
The Diocese of Bacolod vs. Commission on Elections
72 SUPREME COURT REPORTS ANNOTATED
municative element’ of the conduct may be ‘sufficient to
The Diocese of Bacolod vs. Commission on Elections
bring into play the [right to freedom of expression].’”147
II.B.2 The right to freedom of expression, thus, applies to the
Communication is an essential outcome of protected entire continuum of speech from utterances made to conduct
speech.143 enacted, and even to inaction itself as a symbolic manner of
Communication exists when “(1) a speaker, seeking to communication.
signal others, uses conventional actions because he or she In Ebralinag v. The Division Superintendent of Schools of
reasonably believes that such actions will be taken by the Cebu,148 students who were members of the religious sect
audience in the manner intended; and (2) the audience so Jehovah’s Witnesses were to be expelled from school for
takes the actions.”144 “[I]n communicative action[,] the hearer refusing to salute the flag, sing the national anthem, and
may respond to the claims by . . . either accepting the speech recite the patriotic pledge.149 In his concurring opinion, Justice
act’s claims or opposing them with criticism or requests for Cruz discussed how the salute is a symbolic manner of
justification.”145
communication and a valid form of expression.150 He adds that In the 1985 case of Gonzalez v. Chairman
freedom of speech includes even the right to be silent: Katigbak,152petitioners objected to the classification of the
Freedom of speech includes the right to be silent. Aptly has it motion picture “Kapit sa Patalim” as “For Adults Only.” They
been said that the Bill of Rights that guarantees to the individual contend that the classification “is without legal and factual
the liberty to utter what is in his mind also guarantees to him the basis and is exercised as impermissible restraint of artistic
liberty not to utter what is not in his mind. The salute is a symbolic expression.”153 This court recognized that “[m]otion pictures
manner of communication that conveys its message as clearly as
are important both as a medium for the communication of
the written or spoken word. As a valid form of expression, it cannot
ideas and the expression of the artistic impulse.”154 It adds
be compelled any more than it can be prohibited in the face of valid
religious objections like those raised in this petition. To impose it that “every writer, actor, or producer, no matter what medium
on the petitioners is to deny them the right not to speak when their of expression he may use, should be freed from the
religion bids them to be silent. This coercion of conscience has no censor.”155 This court found that “[the Board’s] perception of
place in the free society. what constitutes obscenity appears to be unduly
The democratic system provides for the accommodation of restrictive.”156 However, the petition was dismissed solely on
diverse ideas, including the unconventional and even the bizarre or the ground that there were
eccentric. The will of the majority prevails, but it cannot regiment
thought by prescribing _______________

_______________ 151 Id., at pp. 275-276.


152 222 Phil. 225; 137 SCRA 717 (1985) [Per CJ. Fernando, En Banc].
147 Id., citing US v. O’Brien, 391 U.S. 367, 376 (1968). 153 Id., at p. 228; p. 722.
148 G.R. No. 95770, March 1, 1993, 219 SCRA 256 [Per J. Griño- 154 Id., at p. 229; p. 723.
Aquino, En Banc]. 155 Id., at p. 231; p. 725, citing Superior Films v. Regents of University of
149 Id., at p. 260. State of New York, 346 U.S. 587, 589 (1954), J. Douglas, concurring.
150 Id., at p. 275, Concurring Opinion of J. Cruz. 156 Gonzalez v. Katigbak, 222 Phil. 225, 234; 137 SCRA 717, 728 (1985)
74 [Per CJ. Fernando, En Banc].
74 SUPREME COURT REPORTS ANNOTATED 75
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The Diocese of Bacolod vs. Commission on Elections
the recitation by rote of its opinions or proscribing the assertion not enough votes for a ruling of grave abuse of discretion in
of unorthodox or unpopular views as in this case. The conscientious the classification made by the Board.157
objections of the petitioners, no less than the impatience of those
who disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within II.B.3
rebels.151
Size does matter
Even before freedom “of expression” was included in Article The form of expression is just as important as the
III, Section 4 of the present Constitution, this court has information conveyed that it forms part of the expression. The
applied its precedent version to expressions other than verbal present case is in point.
utterances. It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger more educated and reasoned electorate. A more educated
tarpaulin allows larger fonts which make it easier to view its electorate will increase the possibilities of both good
messages from greater distances. Furthermore, a larger governance and accountability in our government.
tarpaulin makes it easier for passengers inside moving These points become more salient when it is the electorate,
vehicles to read its content. Compared with the pedestrians, not the candidates or the political parties, that speaks. Too
the passengers inside moving vehicles have lesser time to often, the terms of public discussion during elections are
view the content of a tarpaulin. The larger the fonts and framed and kept hostage by brief and catchy but meaningless
images, the greater the probability that it will catch their sound bites extolling the character of the candidate. Worse,
attention and, thus, the greater the possibility that they will elections sideline political arguments and privilege the
understand its message. endorsement by celebrities. Rather than provide obstacles to
Second, the size of the tarpaulin may underscore the their speech, government should in fact encourage it. Between
importance of the message to the reader. From an ordinary the candidates and the electorate, the latter have the better
person’s perspective, those who post their messages in larger incentive to demand discussion of the more important issues.
fonts care more about their message than those who carry Between the candidates and the electorate, the former have
their messages in smaller media. The perceived importance better incentives to avoid difficult political standpoints and
given by the speakers, in this case petitioners, to their cause instead focus on appearances and empty promises.
is also part of the message. The effectivity of communication Large tarpaulins, therefore, are not analogous to time and
sometimes relies on the emphasis put by the speakers and on place.158 They are fundamentally part of expression protected
the credibility of the speakers themselves. Certainly, larger under Article III, Section 4 of the Constitution.
segments of the public may tend to be more convinced of the
_______________
point made by authoritative figures when they make the effort
to emphasize their messages. 158 See Navarro v. Villegas, No. L-31687, February 26, 1970, 31 SCRA
730, 732 and Reyes v. Bagatsing, 210 Phil. 457, 476; 125 SCRA 553, 570 (1983)
_______________ [Per CJ.Fernando, En Banc]. Both cases involve regulation of time and place,
but this does not affect free speech. In Navarro, this court considered that
157 Id., at p. 235; p. 279. “civil rights and liberties can exist and be preserved only in an ordered
76 society.” Moreover, Reyes held that “[t]he high estate accorded the rights to
76 SUPREME COURT REPORTS ANNOTATED free speech and peaceable assembly demands nothing less.”
The Diocese of Bacolod vs. Commission on Elections 77

Third, larger spaces allow for more messages. Larger


VOL. 747, JANUARY 21, 2015 77
spaces, therefore, may translate to more opportunities to The Diocese of Bacolod vs. Commission on Elections
amplify, explain, and argue points which the speakers might II.B.4
want to communicate. Rather than simply placing the names
and images of political candidates and an expression of There are several theories and schools of thought that
support, larger spaces can allow for brief but memorable strengthen the need to protect the basic right to freedom of
presentations of the candidates’ platforms for governance. expression.
Larger spaces allow for more precise inceptions of ideas,
catalyze reactions to advocacies, and contribute more to a
First, this relates to the right of the people to participate in In this jurisdiction, this court held that “[t]he interest of
public affairs, including the right to criticize government society and the maintenance of good government demand a
actions. full discussion of public affairs.”163 This court has, thus,
Proponents of the political theory on “deliberative adopted the principle that “debate on public issues should be
democracy” submit that “substantial, open, [and] ethical uninhibited, robust, and wide open . . . [including even]
dialogue is a critical, and indeed defining, feature of a good unpleasantly sharp attacks on government and public
polity.”159 This theory may be considered broad, but it officials.”164
definitely “includes [a] collective decision-making with the Second, free speech should be encouraged under the
participation of all who will be affected by the decision.”160 It concept of a market place of ideas. This theory was articulated
anchors on the principle that the cornerstone of every by Justice Holmes in that “the ultimate good desired is better
democracy is that sovereignty resides in the people.161 To reached by [the] free trade in ideas:”165
ensure order in running the state’s affairs, sovereign powers When men have realized that time has upset many fighting
were delegated and individuals would be elected or nominated faiths, they may come to believe even more than they believe the
in key government positions to represent the people. On this very foundations of their own conduct that the ultimate good
note, the theory on deliberative democracy may evolve to the desired is better reached by free trade in ideas — that the best test
of truth is the power of the thought to get itself accepted in the
right of the people to make government accountable.
competition of the
Necessarily, this includes the right of the people to criticize
acts made pursuant to governmental functions. _______________
Speech that promotes dialogue on public affairs, or airs out
grievances and political discontent, should thus be protected 162 See J. Sanchez, Concurring and Dissenting Opinion in Gonzales, v.
COMELEC, 137 Phil. 471, 523; 27 SCRA 835, 887-888 (1969)
and encouraged. [Per J. Fernando, En Banc], citing Concurring Opinion in Whitney v.
Borrowing the words of Justice Brandeis, “it is hazardous California, 274 U.S. 357, 375 (1927).
to discourage thought, hope and imagination; that fear breeds 163 United States v. Bustos, 37 Phil. 731, 740 (1918) [Per J. Malcolm, En
Banc].
_______________ 164 Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA
712, 716 [Per J. Gutierrez, Jr., En Banc]. See also Gonzales v.
159 See James A. Gardner, Shut Up and Vote: A Critique of Deliberative COMELEC, supra at p. 493; p. 857.
Democracy and the Life of Talk, 63 Tenn. L. Rev. 421, 422 (1996). 165 See The Impermeable Life: Unsolicited Communications in the
160 See John J. Worley, Deliberative Constitutionalism, Byu L. Rev. 431, Marketplace of Ideas, 118 Harv. L. Rev. 1314 (2005), citing Abrams v. United
441 (2009), citing Jon Elster, Deliberative Democracy, p. 8 (1998). States, 250 U.S. 616, 630 (1919). In Abrams, Justice Holmes dissented from
161 Const., Art. II, Sec. 1. the Supreme Court’s opinion affirming the conviction of five men for
78 circulating pro-Soviet leaflets.
78 SUPREME COURT REPORTS ANNOTATED 79
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repression; that repression breeds hate; that hate menaces
market, and that truth is the only ground upon which their
stable government; that the path of safety lies in the
wishes safely can be carried out.166
opportunity to discuss freely supposed grievances and
proposed remedies.”162
The way it works, the exposure to the ideas of others allows to man’s enjoyment of his life, to his happiness and to his full and
one to “consider, test, and develop their own conclusions.”167 A complete fulfillment. Thru these freedoms the citizens can
free, open, and dynamic market place of ideas is constantly participate not merely in the periodic establishment of the
shaping new ones. This promotes both stability and change government through their suffrage but also in the administration
of public affairs as well as in the discipline of abusive public officers.
where recurring points may crystallize and weak ones may
The citizen is accorded these rights so that he can appeal to the
develop. Of course, free speech is more than the right to
appropriate governmental officers or agencies for redress and
approve existing political beliefs and economic arrangements protection as well as for the imposition of the lawful sanctions on
as it includes, “[t]o paraphrase Justice Holmes, [the] freedom erring public officers and employees.172 (Emphasis supplied)
for the thought that we hate, no less than for the thought that
agrees with us.”168 In fact, free speech may “best serve its high Fourth, expression is a marker for group identity. For one,
purpose when it induces a condition of unrest, creates “[v]oluntary associations perform [an] important democratic
dissatisfaction with conditions as they are, or even stirs role [in providing] forums for the development of civil skills,
people to anger.”169 It is in this context that we should guard for deliberation, and for the formation of identity and
against any curtailment of the people’s right to participate in community spirit[,] [and] are largely immune from [any]
the free trade of ideas. governmental interference.”173 They also “provide a buffer
Third, free speech involves self-expression that enhances between individuals and the state — a free space for the
human dignity. This right is “a means of assuring individual development of individual personality, distinct group identity,
self-fulfillment,”170 among others. In Philippine and dissident ideas — and a potential source of opposition to
Blooming Mills Employees Organization v. Philippine the state.”174 Free speech must be protected as the vehicle to
Blooming Mills Co., Inc.,171this court discussed as follows: find those who have similar and shared values and ideals, to
The rights of free expression, free assembly and petition, are not join together and forward common goals.
only civil rights but also political rights essential
Fifth, the Bill of Rights, free speech included, is supposed
_______________ to “protect individuals and minorities against majoritarian
abuses perpetrated through [the] framework [of democratic
166 Id.
167 Id. _______________
168 Gonzales v. COMELEC, supra note 162 at p. 493; pp. 857-
858, citing Justice Holmes in U.S. v. Schwimmer, 279 U.S. 644, 655 (1929). 172 Id., at p. 675; pp. 201-202.
169 Gonzales v. COMELEC, id., at p. 493; p. 857 citing Terminiello v. City 173 See Lessons in Transcendence: Forced Associations and the Military,
of Chicago, 337 U.S. 1, 4 (1949). 117 Harv. L. Rev. 1981 (2004). This note explains why integration has been so
170 Gonzales v. COMELEC, id. successful regarding military as a forced community, and acknowledging the
171 Philippine Blooming Mills Employees Organization v. Philippine benefits that forced communities produce such as empathy and the like. It
Blooming Mills Co., Inc., 151-A Phil. 656; 51 SCRA 189 (1973) discusses voluntary associations by way of background.
[Per J. Makasiar, En Banc]. 174 Id., at p. 1983, citing Cynthia Estlund, Working Together: How
80 Workplace Bonds Strengthen a Diverse Democracy, p. 106 (2003).
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The Diocese of Bacolod vs. Commission on Elections
governance].”175 Federalist framers led by James Madison The Diocese of Bacolod vs. Commission on Elections
were concerned about two potentially vulnerable groups: “the political participation”183 in that they can “vote for
citizenry at large — majorities — who might be tyrannized or candidates who share their views, petition their legislatures
plundered by despotic federal officials”176 and the minorities to [make or] change laws, . . . distribute literature alerting
who may be oppressed by “dominant factions of the electorate other citizens of their concerns[,]”184 and conduct peaceful
[that] capture [the] government for their own selfish rallies and other similar acts.185Free speech must, thus, be
ends[.]”177 According to Madison, “[i]t is of great importance in protected as a peaceful means of achieving one’s goal,
a republic not only to guard the society against the oppression considering the possibility that repression of nonviolent
of its rulers, but to guard one part of the society against the dissent may spill over to violent means just to drive a point.
injustice of the other part.”178 We should strive to ensure that
free speech is protected especially in light of any potential
oppression against those who find themselves in the fringes II.B.5
on public issues.
Lastly, free speech must be protected under the safety Every citizen’s expression with political consequences
valve theory.179 This provides that “nonviolent manifestations enjoys a high degree of protection.
of dissent reduce the likelihood of violence[.]”180 “[A] dam about Respondents argue that the tarpaulin is election
to burst . . . resulting in the ‘banking up of a menacing flood propaganda, being petitioners’ way of endorsing candidates
of sullen anger behind the walls of restriction’”181 has been who voted against the RH Law and rejecting those who voted
used to describe the effect of repressing nonviolent for it.186 As such, it is subject to regulation by COMELEC
outlets.182 In order to avoid this situation and prevent people under its constitutional mandate.187 Election propaganda is
from resorting to violence, there is a need for peaceful defined under Section 1(4) of COMELEC Resolution No. 9615
methods in making passionate dissent. This includes “free as follows:
expression and SECTION 1. Definitions . . .
....
_______________ 4. The term “political advertisement” or “election propaganda”
refers to any matter broadcasted, published, printed, displayed or
175 See Daryl J. Levinson, Rights and Votes, 121 Yale L. J. 1293 (2012).
exhibited, in any medium, which contain the name, image, logo,
176 Id., at pp. 1293-1294.
177 Id., at p. 1294. brand, insignia, color motif, initials, and other symbol or graphic
178 Id. representation that is capable of being associated with a candidate
179 See Reyes v. Bagatsing, supra note 158 at p. 468; p. 562. or party, and is intended to draw
180 See Safety Valve Closed: The Removal of Nonviolent Outlets for
Dissent and the Onset of Anti-Abortion Violence, 113 Harv. L. Rev. 1210, 1222 _______________
(2000).
181 Id., citing Bradley C. Bobertz, The Brandeis Gambit: The Making of 183 Id., at p. 1223.
America’s “First Freedom,” 1909-1931, 40 WM. & Mary L. Rev. 557, 611 184 Id., at p. 1210.
(1999), quoting Glenn Frank, Is Free Speech Dangerous? 355, 359 (July 1920). 185 Id.
182 Id. 186 Rollo, pp. 72-73.
82 187 Id., at p. 73.
82 SUPREME COURT REPORTS ANNOTATED 83
VOL. 747, JANUARY 21, 2015 83 The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections ues.”193 These rights enjoy precedence and
the attention of the public or a segment thereof to promote or primacy. In Philippine Blooming Mills, this court discussed
194

oppose, directly or indirectly, the election of the said candidate or the preferred position occupied by freedom of expression:
candidates to a public office. In broadcast media, political Property and property rights can be lost thru prescription; but
advertisements may take the form of spots, appearances on TV human rights are imprescriptible. If human rights are extinguished
shows and radio programs, live or taped announcements, teasers, by the passage of time, then the Bill of Rights is a useless attempt
and other forms of advertising messages or announcements used by to limit the power of government and ceases to be an efficacious
commercial advertisers. shield against the tyranny of officials, of majorities, of the
Political advertising includes matters, not falling within the influential and powerful, and of oligarchs — political, economic or
scope of personal opinion, that appear on any Internet website, otherwise.
including, but not limited to, social networks, blogging sites, and In the hierarchy of civil liberties, the rights of free expression
micro-blogging sites, in return for consideration, or otherwise and of assembly occupy a preferred position as they are essential to
capable of pecuniary estimation. the preservation and vitality of our civil and political institutions;
and such priority “gives these liberties the sanctity and the sanction
On the other hand, petitioners invoke their “constitutional not permitting dubious intrusions.”195 (Citations omitted)
right to communicate their opinions, views and beliefs about
issues and candidates.”188 They argue that the tarpaulin was This primordial right calls for utmost respect, more so
their statement of approval and appreciation of the named “when what may be curtailed is the dissemination of
public officials’ act of voting against the RH Law, and their information to make more meaningful the equally vital right
criticism toward those who voted in its favor.189 It was “part of of suffrage.”196 A similar idea appeared in our jurisprudence as
their advocacy campaign against the RH Law,”190 which was early as 1969, which was Justice Barredo’s concurring and
not paid for by any candidate or political party.191 Thus, “the dissenting opinion in Gonzales v. COMELEC:197
questioned orders which . . . effectively restrain[ed] and I like to reiterate over and over, for it seems this is the
curtail[ed] [their] freedom of expression should be declared fundamental point others miss, that genuine democracy thrives
unconstitutional and void.”192 only where the power and right of the people to elect the men to
whom they would entrust the privilege to run the affairs of the state
This court has held free speech and other intellectual
exist. In the language
freedoms as “highly ranked in our scheme of constitutional
val- _______________

_______________ 193 Reyes v. Bagatsing, supra note 158 at p. 475; p. 563. See also Adiong
v. COMELEC, supra note 164 at pp. 712, 715 and 717.
188 Id., at p. 107. 194 Reyes v. Bagatsing, id., at p. 475; p. 570.
189 Id. 195 Philippine Blooming Mills Employees Organization v. Philippine
190 Id., at p. 106. Blooming Mills Co., Inc., supra note 171 at p. 676; p. 202.
191 Id. 196 Adiong v. COMELEC, supra at p. 716.
192 Id., at p. 111. 197 Gonzales v. COMELEC, supra note 162.
84 85
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The Diocese of Bacolod vs. Commission on Elections
of the declaration of principles of our Constitution, “The
Philippines is a republican state. Sovereignty resides in the people others or those of the community or society. The difference in
and all government authority emanates from them” (Section 1, treatment is expected because the relevant interests of one type of
Article II). Translating this declaration into actuality, the speech, e.g., political speech, may vary from those of another, e.g.,
Philippines is a republic because and solely because the people in it obscene speech. Distinctions have therefore been made in the
can be governed only by officials whom they themselves have placed treatment, analysis, and evaluation of the permissible scope of
in office by their votes. And in it is on this cornerstone that I hold it restrictions on various categories of speech. We have ruled, for
to be self-evident that when the freedoms of speech, press and example, that in our jurisdiction slander or libel, lewd and obscene
peaceful assembly and redress of grievances are being exercised in speech, as well as “fighting words” are not entitled to constitutional
relation to suffrage or as a means to enjoy the inalienable right of protection and may be penalized.199 (Citations omitted)
the qualified citizen to vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile, the conduct of We distinguish between political and commercial speech.
public affairs by our officials must be allowed to suffer incessant
Political speech refers to speech “both intended and received
and unabating scrutiny, favorable or unfavorable, everyday and at
as a contribution to public deliberation about some
all times. Every holder of power in our government must be ready
to undergo exposure any moment of the day or night, from January issue,”200 “foster[ing] informed and civic-minded
to December every year, as it is only in this way that he can deliberation.” On the other hand, commercial speech has
201

rightfully gain the confidence of the people. I have no patience for been defined as speech that does “no more than propose a
those who would regard public dissection of the establishment as commercial transaction.”202
an attribute to be indulged by the people only at certain periods of The expression resulting from the content of the tarpaulin
time. I consider the freedoms of speech, press and peaceful assembly is, however, definitely political speech.
and redress of grievances, when exercised in the name of suffrage, as In Justice Brion’s dissenting opinion, he discussed that
the very means by which the right itself to vote can only be properly “[t]he content of the tarpaulin, as well as the timing of its
enjoyed. It stands to reason therefore, that suffrage itself would be posting, makes it subject of the regulations in RA 9006 and
next to useless if these liberties cannot be untrammelled [sic]
Comelec Resolution No. 9615.”203 He adds that “[w]hile indeed
whether as to degree or time.198 (Emphasis supplied)
the RH issue, by itself, is not an electoral matter, the slant
that the petitioners gave the issue converted the nonelection
Not all speech are treated the same. In Chavez v. Gonzales, 199 Chavez v. Gonzales, 569 Phil. 155, 199; 545 SCRA 441, 486 (2008)
this court discussed that some types of speech may be subject [Per CJ.Puno, En Banc].
to regulation: 200 See footnote 64 of Freedom of Speech and Expression, 116 Harv. L.
Some types of speech may be subjected to some regulation by the Rev. 272 (2002), citing Cass R. Sunstein, Free Speech Now, The Bill of Rights
in the Modern State 255, 304 (1992).
State under its pervasive police power, in order that it may not be
201 See Freedom of Speech and Expression, 116 Harv. L. Rev. 272, 278
injurious to the equal right of (2002).
202 See Eric Barendt, Tobacco Advertising: The Last Puff?, Pub. L. 27
_______________ (2002).
203 J. Brion, Dissenting Opinion, p. 152.
198 Id., at p. 563; pp. 926-927. 87
86
VOL. 747, JANUARY 21, 2015 87
The Diocese of Bacolod vs. Commission on Elections It is clear that this paragraph suggests that personal
issue into a live election one hence, Team Buhay and Team opinions are not included, while sponsored messages are
Patay and the plea to support one and oppose the other.”204 covered.
While the tarpaulin may influence the success or failure of Thus, the last paragraph of Section 1(1) of COMELEC
the named candidates and political parties, this does not Resolution No. 9615 states:
necessarily mean it is election propaganda. The tarpaulin was SECTION 1. Definitions.—As used in this Resolution:
not paid for or posted “in return for consideration” by any 1. The term “election campaign” or “partisan political activity”
candidate, political party, or party list group. refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office, and shall
The second paragraph of Section 1(4) of COMELEC
include any of the following:
Resolution No. 9615, or the rules and regulations
....
implementing Republic Act No. 9006 as an aid to interpret the Personal opinions, views, and preferences for candidates,
law insofar as the facts of this case requires, states: contained in blogs shall not be considered acts of election
4. The term “political advertisement” or “election propaganda” campaigning or partisan political activity unless expressed by
refers to any matter broadcasted, published, printed, displayed or government officials in the Executive Department, the Legislative
exhibited, in any medium, which contain the name, image, logo, Department, the Judiciary, the Constitutional Commissions, and
brand, insignia, color motif, initials, and other symbol or graphic members of the Civil Service.
representation that is capable of being associated with a candidate
or party, and is intended to draw the attention of the public or a
In any event, this case does not refer to speech in
segment thereof to promote or oppose, directly or indirectly, the
cyberspace, and its effects and parameters should be deemed
election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of narrowly tailored only in relation to the facts and issues in
spots, appearances on TV shows and radio programs, live or taped this case. It also appears that such wording in COMELEC
announcements, teasers, and other forms of advertising messages Resolution No. 9615 does not similarly appear in Republic Act
or announcements used by commercial advertisers. No. 9006, the law it implements.
Political advertising includes matters, not falling within We should interpret in this manner because of the value of
the scope of personal opinion, that appear on any Internet political speech.
website, including, but not limited to, social networks, As early as 1918, in United States v. Bustos,205 this court
blogging sites, and micro-blogging sites, in return for recognized the need for full discussion of public affairs. We
consideration, or otherwise capable of pecuniary acknowledged that free speech includes the right to criticize
estimation.(Emphasis supplied)
the conduct of public men:
_______________
_______________
204 J. Brion, Dissenting Opinion, p. 158.
205 37 Phil. 731 (1918) [Per J. Malcolm, En Banc].
88
89
88 SUPREME COURT REPORTS ANNOTATED VOL. 747, JANUARY 21, 2015 89
The Diocese of Bacolod vs. Commission on Elections The Diocese of Bacolod vs. Commission on Elections
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free In 1983, Reyes v. Bagatsing214 discussed the importance of
speech. The sharp incision of its probe relieves the abscesses of allowing individuals to vent their views. According to this
officialdom. Men in public life may suffer under a hostile and an court, “[i]ts value may lie in the fact that there may be
unjust accusation; the wound can be assuaged with the balm of a something worth hearing from the dissenter [and] [t]hat is to
clear conscience. A public officer must not be too thin-skinned with
ensure a true ferment of ideas.”215
reference to comment upon his official acts. Only thus can the
Allowing citizens to air grievances and speak constructive
intelligence and dignity of the individual be exalted.206
criticisms against their government contributes to every
society’s goal for development. It puts forward matters that
Subsequent jurisprudence developed the right to petition
may be changed for the better and ideas that may be
the government for redress of grievances, allowing for
deliberated on to attain that purpose. Necessarily, it also
criticism, save for some exceptions.207 In the 1951 case
makes the government accountable for acts that violate
of Espuelas v. People,208this court noted every citizen’s
constitutionally protected rights.
privilege to criticize his or her government, provided it is
In 1998, Osmeña v. COMELEC found Section 11(b) of
“specific and therefore constructive, reasoned or tempered,
Republic Act No. 6646, which prohibits mass media from
and not a contemptuous condemnation of the entire
selling print space and air time for campaign except to the
government setup.”209
COMELEC, to be a democracy-enhancing measure.216 This
The 1927 case of People v. Titular210 involved an alleged
court mentioned how “discussion of public issues and debate
violation of the Election Law provision “penaliz[ing] the
on the qualifications of candidates in an election are essential
anonymous criticism of a candidate by means of posters or
to the proper functioning of the government established by
circulars.”211 This court explained that it is the poster’s
our Constitution.”217
anonymous character that is being
As pointed out by petitioners, “speech serves one of its
penalized.212 The ponente adds that he would “dislike very
greatest public purposes in the context of elections when the
much to see this decision made the vehicle for the suppression
free exercise thereof informs the people what the issues are,
of public opinion.”213
and who are supporting what issues.”218 At the heart of
_______________ democracy is every advocate’s right to make known what the
people need to know,219while the meaningful exercise of one’s
206 Id., at pp. 740-741.
207 People v. Perez, 45 Phil. 599, 604-605 (1923) [Per J. Malcolm, En _______________
Banc].
208 90 Phil. 524 (1951) [Per J. Bengzon, En Banc]. 214 210 Phil. 457; 125 SCRA 553 (1983) [Per CJ. Fernando, En Banc].
209 Id., at p. 529. 215 Id., at p. 468; pp. 562-563.
210 49 Phil. 930 (1927) [Per J. Malcolm, En Banc]. 216 Osmeña v. COMELEC, 351 Phil. 692, 720; 288 SCRA 447, 479 (1998)
211 Id., at p. 931. [Per J. Mendoza, En Banc].
212 Id., at p. 937. 217 Id., at p. 719; pp. 478-479.
213 Id., at p. 938. 218 Rollo, p. 108.
90 219 See Barry Sullivan, FOIA and the First Amendment: Representative
90 SUPREME COURT REPORTS ANNOTATED Democracy and the People’s Elusive “Right to Know,” 72 MD. L. REV. 1, 9
The Diocese of Bacolod vs. Commission on Elections (2012). “[P]eople’s ‘right to know’ serves two sepa
91
VOL. 747, JANUARY 21, 2015 91 The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections the regulation is content-based or content-
right of suffrage includes the right of every voter to know neutral. Content-based regulations can either be based on
223

what they need to know in order to make their choice. the viewpoint of the speaker or the subject of the expression.
Thus, in Adiong v. COMELEC,220 this court discussed the
importance of debate on public issues, and the freedom of II.B.6
expression especially in relation to information that ensures
the meaningful exercise of the right of suffrage: Content-based regulation
We have adopted the principle that debate on public issues COMELEC contends that the order for removal of the
should be uninhibited, robust, and wide open and that it may well tarpaulin is a content-neutral regulation. The order was made
include vehement, caustic and sometimes unpleasantly sharp simply because petitioners failed to comply with the
attacks on government and public officials. Too many restrictions maximum size limitation for lawful election propaganda.224
will deny to people the robust, uninhibited, and wide open debate, On the other hand, petitioners argue that the present size
the generating of interest essential if our elections will truly be free,
regulation is content-based as it applies only to political
clean and honest.
speech and not to other forms of speech such as commercial
We have also ruled that the preferred freedom of expression calls
all the more for the utmost respect when what may be curtailed is speech.225“[A]ssuming arguendo that the size restriction
the dissemination of information to make more meaningful the sought to be applied . . . is a mere time, place, and manner
equally vital right of suffrage.221 (Emphasis supplied, citations regulation, it’s still unconstitutional for lack of a clear and
omitted) reasonable nexus with a constitutionally sanctioned
objective.”226
Speech with political consequences is at the core of the The regulation may reasonably be considered as either
freedom of expression and must be protected by this court. content-neutral or content-based.227 Regardless, the
Justice Brion pointed out that freedom of expression “is not disposition of this case will be the same. Generally, compared
the god of rights to which all other rights and even with other forms of speech, the proposed speech is content-
government protection of state interest must bow.”222 based.
The right to freedom of expression is indeed not absolute. As pointed out by petitioners, the interpretation of
Even some forms of protected speech are still subject to some COMELEC contained in the questioned order applies only to
restrictions. The degree of restriction may depend on whether posters

_______________ _______________

rate democratic values: governmental accountability and citizen 223 See Chavez v. Gonzales, supra note 199 at pp. 204-205; pp. 492-
participation.” 493. See also Erwin Chemerinsky, Content Neutrality as a Central Problem of
220 Adiong v. COMELEC, supra note 164. Freedom of Speech: Problems in the Supreme Court’s Application, 74 S. CAL.
221 Id., at p. 716. See also Mutuc v. COMELEC, 146 Phil. 798, 805-806; L. Rev. 49, 51 (2000).
36 SCRA 228, 233-234 (1970) [Per J. Fernando, En Banc]. 224 Rollo, p. 83.
222 J. Brion, Dissenting Opinion, p. 169. 225 Id., at p. 118.
92 226 Id., at p. 123.
92 SUPREME COURT REPORTS ANNOTATED
227 See for instance Wilson R. Huhn, Assessing the Constitutionality of 229 Id.
Laws That Are Both Content-Based and Content-Neutral: The Emerging 230 Id., at p. 200; p. 488.
Constitutional Calculus, 79 Ind. L. J. 801 (2004). 94
93 94 SUPREME COURT REPORTS ANNOTATED
VOL. 747, JANUARY 21, 2015 93 The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections ing the burden of overcoming the presumed
and tarpaulins that may affect the elections because they unconstitutionality.”231
deliver opinions that shape both their choices. It does not Even with the clear and present danger test, respondents
cover, for instance, commercial speech. failed to justify the regulation. There is no compelling and
Worse, COMELEC does not point to a definite view of what substantial state interest endangered by the posting of the
kind of expression of noncandidates will be adjudged as tarpaulin as to justify curtailment of the right of freedom of
“election paraphernalia.” There are no existing bright lines to expression. There is no reason for the state to minimize the
categorize speech as election-related and those that are not. right of noncandidate petitioners to post the tarpaulin in their
This is especially true when citizens will want to use their private property. The size of the tarpaulin does not affect
resources to be able to raise public issues that should be anyone else’s constitutional rights.
tackled by the candidates as what has happened in this case. Content-based restraint or censorship refers to restrictions
COMELEC’s discretion to limit speech in this case is “based on the subject matter of the utterance or speech.”232 In
fundamentally unbridled. contrast, content-neutral regulation includes controls merely
Size limitations during elections hit at a core part of on the incidents of the speech such as time, place, or manner
expression. The content of the tarpaulin is not easily divorced of the speech.233
from the size of its medium. This court has attempted to define “content-neutral”
Content-based regulation bears a heavy presumption of restraints starting with the 1948 case of Primicias v.
invalidity, and this court has used the clear and present Fugoso.234 The ordinance in this case was construed to grant
danger rule as measure.228 Thus, in Chavez v. Gonzales: the Mayor discretion only to determine the public places that
A content-based regulation, however, bears a heavy may be used for the procession or meeting, but not the power
presumption of invalidity and is measured against the clear and to refuse the issuance of a permit for such procession or
present danger rule. The latter will pass constitutional muster only
meeting.235 This court explained that free speech and peaceful
if justified by a compelling reason, and the restrictions imposed are
neither overbroad nor vague.229 (Citations omitted)
assembly are “not absolute for it may be so regulated that it
shall not be injurious to the equal enjoyment of others having
Under this rule, “the evil consequences sought to be equal rights, nor injurious to the rights of the community or
prevented must be substantive, ‘extremely serious and the society.”236
degree of imminence extremely high.’”230 “Only when the _______________
challenged act has overcome the clear and present danger rule
will it pass constitutional muster, with the government hav 231 Id., at p. 206; p. 494.
232 Id., at p. 205; p. 493.
_______________ 233 Id., at p. 204; p. 493. See Primicias v. Fugoso, 80 Phil. 71 (1948)
[Per J.Feria, En Banc]; Reyes v. Bagatsing, supra note 158.
228 Chavez v. Gonzales, supra note 199 at pp. 207-208; p. 496. 234 Primicias v. Fugoso, id.
235 Id., at p. 77. 237 70 Phil. 726 (1940) [Per J. Laurel, En Banc].
236 Id., at p. 75. 238 Id., at pp. 728-729.
95 239 Id., at p. 733.
VOL. 747, JANUARY 21, 2015 95 240 7 Phil. 422 (1907) [Per J. Carson, En Banc].
241 Id., at p. 426.
The Diocese of Bacolod vs. Commission on Elections 242 Reyes v. Bagatsing, supra note 158 at p. 475; p. 563.
The earlier case of Calalang v. Williams237 involved the 243 Id.
National Traffic Commission resolution that prohibited the 244 522 Phil. 201; 488 SCRA 226 (2006) [Per J. Azcuna, En Banc].
96
passing of animal-drawn vehicles along certain roads at
specific hours.238 This court similarly discussed police power in
96 SUPREME COURT REPORTS ANNOTATED
that the assailed rules carry out the legislative policy that The Diocese of Bacolod vs. Commission on Elections
“aims to promote safe transit upon and avoid obstructions on Pambansa Blg. 880 does not prohibit assemblies but
national roads, in the interest and convenience of the simply regulates their time, place, and manner.245 In 2010,
public.”239 this court found in Integrated Bar of the Philippines v.
As early as 1907, United States v. Apurado240 recognized Atienza246 that respondent Mayor Atienza committed grave
that “more or less disorder will mark the public assembly of abuse of discretion when he modified the rally permit by
the people to protest against grievances whether real or changing the venue from Mendiola Bridge to Plaza Miranda
imaginary, because on such occasions feeling is always without first affording petitioners the opportunity to be
wrought to a high pitch of excitement. . . .”241 It is with this heard.247
backdrop that the state is justified in imposing restrictions on We reiterate that the regulation involved at bar is content-
incidental matters as time, place, and manner of the speech. based. The tarpaulin content is not easily divorced from the
In the landmark case of Reyes v. Bagatsing, this court size of its medium.
summarized the steps that permit applicants must follow
which include informing the licensing authority ahead of time II.B.7
as regards the date, public place, and time of the
assembly.242 This would afford the public official time to Justice Carpio and Justice Perlas-Bernabe suggest that the
inform applicants if there would be valid objections, provided provisions imposing a size limit for tarpaulins are content-
that the clear and present danger test is the standard used for neutral regulations as these “restrict the manner by which
his decision and the applicants are given the opportunity to speech is relayed but not the content of what is conveyed.”248
be heard.243 This ruling was practically codified in Batas If we apply the test for content-neutral regulation, the
Pambansa Blg. 880, otherwise known as the Public Assembly questioned acts of COMELEC will not pass the three
Act of 1985. requirements for evaluating such restraints on freedom of
Subsequent jurisprudence have upheld Batas speech.249 “When
Pambansa Blg. 880 as a valid content-neutral regulation. In
_______________
the 2006 case of Bayan v. Ermita,244 this court discussed
how Batas 245 Id., at pp. 219 and 231; p. 268. See also Osmeña v.
COMELEC, supra note 216 at p. 719; p. 467.
_______________ 246 Integrated Bar of the Philippines v. Atienza, G.R. No. 175241,
February 24, 2010, 613 SCRA 518 [Per J. Carpio-Morales, First Division].
247 Id., at pp. 526-527. and J. Nachura. J. Corona joined J. Nachura’s opinion. J. Leonardo-De
248 J. Carpio, Separate Concurring Opinion, p. 127, emphasis in the Castro joined J. Nazario’s and J. Nachura’s opinions.
original; J.Perlas-Bernabe, Separate Concurring Opinion, p. 172. 250 Id., at p. 205; p. 493. See Osmeña v. COMELEC, supra note 216 at p.
249 Chavez v. Gonzales, supra note 199 at p. 200; p. 487. 717; p. 477 [Per J. Mendoza, En Banc].
The ponencia was concurred in by J. Ynares-Santiago and J. Reyes. Separate 251 Id.
concurring opinions were written by J. Sandoval-Gutierrez, J. Carpio, 252 See Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571; 357
and J. Azcuna. Three justices (J.Quisumbing, J. Austria-Martinez, SCRA 496 (2001) [Per J. Mendoza, Second Division]; Adiong
and J. Carpio Morales) joined J. Carpio’s opinion. Dissenting and concurring v. COMELEC, supra note 164; Osmeña v. COMELEC, supra.
opinions were written by J. Tinga and J. Velasco, Jr. Separate dissenting 253 Chavez v. Gonzales, supra note 199 at p. 206; p. 494.
opinions were written by J. Chico-Nazario 98
97 98 SUPREME COURT REPORTS ANNOTATED
VOL. 747, JANUARY 21, 2015 97 The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections and care for them, as parens patriae,254 constitute a
the speech restraints take the form of a content-neutral substantial and compelling government interest in regulating
regulation, only a substantial governmental interest is . . . utterances in TV broadcast.”255
required for its validity,”250 and it is subject only to the Respondent invokes its constitutional mandate to ensure
intermediate approach.251 equal opportunity for public information campaigns among
This intermediate approach is based on the test that we candidates in connection with the holding of a free, orderly,
have prescribed in several cases.252 A content-neutral honest, peaceful, and credible election.256
government regulation is sufficiently justified: Section 4. The Commission may, during the election
[1] if it is within the constitutional power of the Government; [2] period, supervise or regulate the enjoyment or utilization of
if it furthers an important or substantial governmental interest; [3] all franchises or permits for the operation of transportation
if the governmental interest is unrelated to the suppression of free
and other public utilities, media of communication or
expression; and [4] if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the
information, all grants, special privileges, or concessions
furtherance of that interest.253 granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or
On the first requisite, it is not within the constitutional -controlled corporation or its subsidiary. Such supervision or
powers of the COMELEC to regulate the tarpaulin. As regulation shall aim to ensure equal opportunity, time, and
discussed earlier, this is protected speech by petitioners who space, and the right to reply, including reasonable, equal rates
are noncandidates. therefor, for public information campaigns and forums among
On the second requirement, not only must the candidates in connection with the objective of holding free,
governmental interest be important or substantial, it must orderly, honest, peaceful, and credible elections.
also be compelling as to justify the restrictions made. Justice Brion in his dissenting opinion discussed that
Compelling governmental interest would include “[s]ize limits to posters are necessary to ensure equality of
constitutionally declared principles. We have held, for public information campaigns among candidates, as allowing
example, that “the welfare of children and the State’s posters with different sizes gives candidates and their
mandate to protect supporters the incentive to post larger posters[,] [and] [t]his
places candidates with more money and/or with deep-pocket
_______________
supporters at an undue advantage against candidates with of election frauds, offenses, malpractices, and nuisance candidates.
more humble financial capabilities.”257 (Emphasis supplied)
First, Adiong v. COMELEC has held that this interest is
“not as important as the right of [a private citizen] to freely This does not qualify as a compelling and substantial
express his choice and exercise his right of free speech.”258 In government interest to justify regulation of the preferred
any case, faced with both rights to freedom of speech and right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are
_______________ based on the two feet (2’) by three feet (3’) size limitation
254 Const., Art. II, Secs. 12 and 13. _______________
255 Soriano v. Laguardia, 605 Phil. 43, 106; 587 SCRA 79, 110 (2009)
[Per J.Velasco, Jr., En Banc]. 259 See John A. Powell, Worlds Apart: Reconciling Freedom of Speech and
256 Const., Art. IX-C, Sec. 4. Equality, 85 KY.L.J. 94 (1996-1997).
257 J. Brion, Dissenting Opinion, p. 170. 260 Rep. Act No. 9006, Sec. 9; COMELEC Resolution No. 9615, Sec. 17(b).
258 Adiong v. COMELEC, supra note 164 at p. 722. 261 Const., Art. III, Sec. 1.
99 262 Const., Art. IX-C, Sec. 2(7).
VOL. 747, JANUARY 21, 2015 99 100
The Diocese of Bacolod vs. Commission on Elections 100 SUPREME COURT REPORTS ANNOTATED
equality, a prudent course would be to “try to resolve the The Diocese of Bacolod vs. Commission on Elections
tension in a way that protects the right of participation.”259 under Section 6(c) of COMELEC Resolution No. 9615. This
Second, the pertinent election laws related to private resolution implements the Fair Elections Act that provides for
property only require that the private property owner’s the same size limitation.263
consent be obtained when posting election propaganda in the This court held in Adiong v. COMELEC that “[c]ompared
property.260 This is consistent with the fundamental right to the paramount interest of the State in guaranteeing
against deprivation of property without due process of freedom of expression, any financial considerations behind
law.261 The present facts do not involve such posting of election the regulation are of marginal significance.”264 In fact, speech
propaganda absent consent from the property owner. Thus, with political consequences, as in this case, should be
this regulation does not apply in this case. encouraged and not curtailed. As petitioners pointed out, the
Respondents likewise cite the Constitution262 on their size limitation will not serve the objective of minimizing
authority to recommend effective measures to minimize election spending considering there is no limit on the number
election spending. Specifically, Article IX-C, Section 2(7) of tarpaulins that may be posted.265
provides: The third requisite is likewise lacking. We look not only at
Sec. 2. The Commission on Elections shall exercise the the legislative intent or motive in imposing the restriction, but
following powers and functions: more so at the effects of such restriction, if implemented. The
.... restriction must not be narrowly tailored to achieve the
(7) Recommend to the Congress effective measures to minimize purpose. It must be demonstrable. It must allow alternative
election spending, including limitation of places where propaganda
avenues for the actor to make speech.
materials shall be posted, and to prevent and penalize all forms
In this case, the size regulation is not unrelated to the earlier asserted that “the materials on which words were
suppression of speech. Limiting the maximum size of the written down have often counted for more than the words
tarpau- themselves.”267

_______________
III
263 Rep. Act No. 9006 (2001), Sec. 3.3, provides: Freedom of expression and equality
Sec. 3. Lawful Election Propaganda.— . . . .
For the purpose of this Act, lawful election propaganda shall include: III.A
....
The possibility of abuse
3.3. Cloth, paper or cardboard posters whether framed, or posted, with
an area not exceeding two (2) feet by three (3) feet, except that, at the site and
on the occasion of a public meeting or rally, or in announcing the holding of Of course, candidates and political parties do solicit the
said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet help of private individuals for the endorsement of their
in size, shall be allowed: Provided, That said streamers may be displayed five
(5) days before the date of the meeting or rally and shall be removed within
electoral campaigns.
twenty-four (24) hours after said meeting or rally[.]
_______________
264 Adiong v. COMELEC, supra note 164 at p. 722.
265 Rollo, p. 133.
101 266 Christina J. Angelopoulos, Freedom of Expression and Copyright: The
Double Balancing Act, I.P.Q. 3, 334-335 (2008).
VOL. 747, JANUARY 21, 2015 101 267 M. Ethan Katsh, Cybertime, Cyberspace and Cyberlaw, J. ONLINE L.
The Diocese of Bacolod vs. Commission on Elections Art. 1, par. 7 (1995).
lin would render ineffective petitioners’ message and 102
violate their right to exercise freedom of expression. 102 SUPREME COURT REPORTS ANNOTATED
The COMELEC’s act of requiring the removal of the The Diocese of Bacolod vs. Commission on Elections
tarpaulin has the effect of dissuading expressions with On the one extreme, this can take illicit forms such as when
political consequences. These should be encouraged, more so endorsement materials in the form of tarpaulins, posters, or
when exercised to make more meaningful the equally media advertisements are made ostensibly by “friends” but in
important right to suffrage. reality are really paid for by the candidate or political party.
The restriction in the present case does not pass even the This skirts the constitutional value that provides for equal
lower test of intermediate scrutiny for content-neutral opportunities for all candidates.
regulations. However, as agreed by the parties during the oral
The action of the COMELEC in this case is a strong arguments in this case, this is not the situation that confronts
deterrent to further speech by the electorate. Given the us. In such cases, it will simply be a matter for investigation
stature of petitioners and their message, there are indicators and proof of fraud on the part of the COMELEC.
that this will cause a “chilling effect” on robust discussion The guarantee of freedom of expression to individuals
during elections. without any relationship to any political candidate should not
The form of expression is just as important as the message be held hostage by the possibility of abuse by those seeking to
itself. In the words of Marshall McLuhan, “the medium is the be elected. It is true that there can be underhanded, covert, or
message.”266McLuhan’s colleague and mentor Harold Innis has illicit dealings so as to hide the candidate’s real levels of
expenditures. However, labelling all expressions of private social criticism”269 “because it tears down facades, deflates
parties that tend to have an effect on the debate in the stuffed shirts, and unmasks hypocrisy. . . . Nothing is more
elections as election paraphernalia would be too broad a thoroughly democratic than to have the high-and-mighty
remedy that can stifle genuine speech like in this case. lampooned and spoofed.”270 Northrop Frye, well-known in this
Instead, to address this evil, better and more effective literary field, claimed that satire had two defining features:
enforcement will be the least restrictive means to the “one is wit or humor founded on fantasy or a sense of the
fundamental freedom. grotesque and absurd, the other is an object of attack.”271 Thus,
On the other extreme, moved by the credentials and the satire frequently uses exaggeration, analogy, and other
message of a candidate, others will spend their own resources rhetorical devices.
in order to lend support for the campaigns. This may be The tarpaulins exaggerate. Surely, “Team Patay” does not
without agreement between the speaker and the candidate or refer to a list of dead individuals nor could the Archbishop of
his or her political party. In lieu of donating funds to the the Diocese of Bacolod have intended it to mean that the
campaign, they will instead use their resources directly in a entire plan of the candidates in his list was to cause death
way that the candidate or political party would have done so. intentionally. The tarpaulin caricatures political parties and
This may effectively skirt the constitutional and statutory parodies the intention of those in the list. Furthermore,
limits of campaign spending.
_______________
Again, this is not the situation in this case.
The message of petitioners in this case will certainly not be 268 See Leslie Kim Treiger, Protecting Satire Against Libel Claims: A
what candidates and political parties will carry in their New Reading of the First Amendment’s Opinion Privilege, 98 YALE L.J. 1215
election posters or media ads. The message of petitioner, taken (1989).
269 Id.
as a whole, is an advocacy of a social issue that it deeply
270 Id., citing Falwell v. Flynt, 805 F.2d 484, 487 (4th Cir. 1986)
believes. (J. Wilkinson, Dissenting from denial of rehearing En Banc).
103 271 See Joseph Brooker, Law, Satire, Incapacity: Satire Bust: The Wagers
VOL. 747, JANUARY 21, 2015 103 of Money, 17 Law & Literature 321, 327 (2005), citing Northrop
The Diocese of Bacolod vs. Commission on Elections Frye, Anatomy of Criticism: Four Essays 224 (1957).
104
Through rhetorical devices, it communicates the desire of 104 SUPREME COURT REPORTS ANNOTATED
Diocese that the positions of those who run for a political
The Diocese of Bacolod vs. Commission on Elections
position on this social issue be determinative of how the public
will vote. It primarily advocates a stand on a social the list of “Team Patay” is juxtaposed with the list of “Team
Buhay” that further emphasizes the theme of its author:
issue; only secondarily — even almost incidentally —
will cause the election or nonelection of a candidate. Reproductive health is an important marker for the church of
petitioners to endorse.
The twin tarpaulins consist of satire of political parties.
The messages in the tarpaulins are different from the usual
Satire is a “literary form that employs such devices as
messages of candidates. Election paraphernalia from
sarcasm, irony and ridicule to deride prevailing vices or
candidates and political parties are more declarative and
follies,”268 and this may target any individual or group in
descriptive and contain no sophisticated literary allusion to
society, private and government alike. It seeks to effectively
any social objective. Thus, they usually simply exhort the
communicate a greater purpose, often used for “political and
public to vote for a person with a brief description of the unwittingly cause the undesired effect of diluting freedoms as
attributes of the candidate. For example “Vote for [x], Sipag exercised in reality and, thus, render them meaningless.
at Tiyaga,” “Vote for [y], Mr. Palengke,” or “Vote for [z], Iba
kami sa Makati.” III.B.
This court’s construction of the guarantee of freedom of Speech and equality:
expression has always been wary of censorship or subsequent Some considerations
punishment that entails evaluation of the speaker’s viewpoint
or the content of one’s speech. This is especially true when the We first establish that there are two paradigms of free
expression involved has political consequences. In this case, it speech that separate at the point of giving priority to
hopes to affect the type of deliberation that happens during equality vis-à-vis liberty.272
elections. A becoming humility on the part of any human In an equality-based approach, “politically disadvantaged
institution no matter how endowed with the secular ability to speech prevails over regulation[,] but regulation promoting
decide legal controversies with finality entails that we are not political equality prevails over speech.”273 This view allows the
the keepers of all wisdom. government leeway to redistribute or equalize ‘speaking
Humanity’s lack of omniscience, even acting collectively, power,’ such as protecting, even implicitly subsidizing,
provides space for the weakest dissent. Tolerance has always unpopular or dissenting voices often systematically subdued
been a libertarian virtue whose version is embedded in our within society’s ideological ladder.274 This view acknowledges
Bill of Rights. There are occasional heretics of yesterday that that there are dominant political actors who, through
have become our visionaries. Heterodoxies have always given authority, power, resources, identity, or status, have
us pause. The unforgiving but insistent nuance that the capabilities that may drown out the messages of others. This
majority surely and comfortably disregards provides us with is especially true in a developing or emerging economy that is
the checks upon reality that may soon evolve into creative part of the majoritarian world like ours.
solutions to grave social problems. This is the utilitarian The question of libertarian tolerance
version. It could also be that it is just part of human necessity This balance between equality and the ability to express so
to evolve through being able to express or communicate. as to find one’s authentic self or to participate in the self de-
However, the Constitution we interpret is not a theoretical
_______________
document. It contains other provisions which, taken together
105
272 See Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124
VOL. 747, JANUARY 21, 2015 105 Harv. L. Rev. 144-146 (2010).
The Diocese of Bacolod vs. Commission on Elections 273 Id., at p. 145.
with the guarantee of free expression, enhances each 274 Id., at pp. 148-149.
106
other’s value. Among these are the provisions that
106 SUPREME COURT REPORTS ANNOTATED
acknowledge the idea of equality. In shaping doctrine
The Diocese of Bacolod vs. Commission on Elections
construing these constitutional values, this court needs to
exercise extraordinary prudence and produce narrowly termination of one’s communities is not new only to law. It
tailored guidance fit to the facts as given so as not to has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and
social theorist Herbert Marcuse recognized how Marcuse suggests that the democratic argument — with all
institutionalized inequality exists as a background limitation, opinions presented to and deliberated by the people —
rendering freedoms exercised within such limitation as “implies a necessary condition, namely, that the people must
merely “protect[ing] the already established machinery of be capable of deliberating and choosing on the basis of
discrimination.”275 In his view, any improvement “in the knowledge, that they must have access to authentic
normal course of events” within an unequal society, without information, and that, on this basis, their evaluation must be
subversion, only strengthens existing interests of those in the result of autonomous thought.”278 He submits that
power and control.276 “[d]ifferent opinions and ‘philosophies’ can no longer compete
In other words, abstract guarantees of fundamental rights peacefully for adherence and persuasion on rational grounds:
like freedom of expression may become meaningless if not the ‘marketplace of ideas’ is organized and delimited by those
taken in a real context. This tendency to tackle rights in the who determine the national and the individual interest.”279
abstract compromises liberties. In his words: A slant toward left manifests from his belief that “there is
Liberty is self-determination, autonomy — this is almost a a ‘natural right’ of resistance for oppressed and overpowered
tautology, but a tautology which results from a whole series of minorities to use extralegal means if the legal ones have
synthetic judgments. It stipulates the ability to determine one’s proved to be inadequate.”280 Marcuse, thus, stands for an
own life: to be able to determine what to do and what not to do, what equality that breaks away and transcends from established
to suffer and what not. But the subject of this autonomy is never
hierarchies, power structures, and indoctrinations. The
the contingent, private individual as that which he actually is or
tolerance of libertarian society he refers to as “repressive
happens to be; it is rather the individual as a human being who is
capable of being free with the others. And the problem of making tolerance.”
possible such a harmony between every individual liberty and the
other is not that of finding a compromise between competitors, or Legal scholars
between freedom and law, between general and individual interest,
common and private welfare in an established society, but The 20th century also bears witness to strong support from
of creating the society in which man is no longer enslaved by legal scholars for “stringent protections of expressive
institutions which vitiate self-determination from the beginning. In liberty,”281especially by political egalitarians. Considerations
other words, freedom is still to be such as “expressive, deliberative, and informational
interests,”282 costs or the price of expression, and background
_______________
facts,
275 See Herbert Marcuse, Repressive Tolerance, in A Critique of Pure
Tolerance, p. 85 (1965). _______________
276 Id., at pp. 93-94.
107 277 Id., at pp. 86-87.
VOL. 747, JANUARY 21, 2015 107 278 Id., at p. 95.
279 Id., at p. 110.
The Diocese of Bacolod vs. Commission on Elections 280 Id., at p. 116.
281 See Joshua Cohen, Freedom of Expression, in Toleration: an Elusive
created even for the freest of the existing societies.277 (Emphasis Virtue, p. 176 (1996).
282 Id., at p. 184.
in the original)
108 290 Id., at p. 201.
108 SUPREME COURT REPORTS ANNOTATED 109
The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 109
when taken together, produce bases for a system of The Diocese of Bacolod vs. Commission on Elections
stringent protections for expressive liberties.283 [equality] has full meaning.”291 Professor Catherine A.
Many legal scholars discuss the interest and value of MacKinnon adds that “equality continues to be viewed in a
expressive liberties. Justice Brandeis proposed that “public formal rather than a substantive sense.”292 Thus, more speech
discussion is a political duty.”284 Cass Sustein placed political can only mean more speech from the few who are dominant
speech on the upper tier of his two-tier model for freedom of rather than those who are not.
expression, thus, warranting stringent protection.285 He
defined political speech as “both intended and received as a Our jurisprudence
contribution to public deliberation about some issue.”286
But this is usually related also to fair access to This court has tackled these issues.
opportunities for such liberties.287 Fair access to opportunity is Osmeña v. COMELEC affirmed National Press Club v.
suggested to mean substantive equality and not mere formal COMELEC on the validity of Section 11(b) of the Electoral
equality since “favorable conditions for realizing the Reforms Law of 1987.293 This section “prohibits mass media
expressive interest will include some assurance of the from selling or giving free of charge print space or air time for
resources required for expression and some guarantee that campaign or other political purposes, except to the
efforts to express views on matters of common concern will not Commission on Elections.”294 This court explained that this
be drowned out by the speech of better-endowed citizens.”288 provision only regulates the time and manner of advertising
Justice Brandeis’ solution is to “remedy the harms of in order to ensure media equality among candidates.295 This
speech with more speech.”289 This view moves away from court grounded this measure on constitutional provisions
playing down the danger as merely exaggerated, toward mandating political equality:296
“tak[ing] the costs seriously and embrac[ing] expression as Article IX-C, Section 4
the preferred strategy for addressing them.”290 Section 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all franchises
However, in some cases, the idea of more speech may not
or permits for the operation of transportation and other public
be enough. Professor Laurence Tribe observed the need for utilities, media of communication or information, all grants, special
context and “the specification of substantive values before privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
_______________
government-owned or -controlled
283 Id., at pp. 184-192.
284 Id., at p. 186, citing Whitney v. California, 274 US 357, 375 (1927) _______________
(J.Brandeis, concurring).
285 See Joshua Cohen, Freedom of Expression, supra note 281 at p. 187. 291 See John A. Powell, Worlds Apart: Reconciling Freedom of Speech and
286 Id., citing Democracy, p. 134. Equality, 85 KY. L. J. 9, 50-51 (1996-1997).
287 Id., at p. 179. 292 Id., at p. 51.
288 Id., at p. 202. 293 Osmeña v. COMELEC, supra note 216 at p. 705; p. 478.
289 Id., at p. 200. 294 Id., at p. 702; p. 461.
295 Id., at p. 706; p. 467.
296 Id., at pp. 713-714; p. 473. Under this view, “members of the public are trusted to
110
make their own individual evaluations of speech, and
110 SUPREME COURT REPORTS ANNOTATED government is forbidden to intervene for paternalistic or
The Diocese of Bacolod vs. Commission on Elections redistributive reasons . . . [thus,] ideas are best left to a freely
corporation or its subsidiary. Such supervision or regulation competitive ideological market.”297This is consistent with the
shall aim to ensure equal opportunity, time, and space, and the right libertarian suspicion on the use of viewpoint as well as content
to reply, including reasonable, equal rates therefor, for public
to evaluate the constitutional validity or invalidity of speech.
information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and The textual basis of this view is that the constitutional
credible elections. (Emphasis supplied) provision uses negative rather than affirmative language. It
Article XIII, Section 1 uses ‘speech’ as its subject and not ‘speakers.’298 Consequently,
Section 1. The Congress shall give highest priority to the the Constitution protects free speech per se, indifferent to the
enactment of measures that protect and enhance the right of all the types, status, or associations of its speakers.299 Pursuant to
people to human dignity, reduce social, economic, and political this, “government must leave speakers and listeners in the
inequalities, and remove cultural inequities by equitably diffusing private order to their own devices in sorting out the relative
wealth and political power for the common good. influence of speech.”300
To this end, the State shall regulate the acquisition, ownership, Justice Romero’s dissenting opinion in Osmeña v.
use, and disposition of property and its increments. (Emphasis COMELEC formulates this view that freedom of speech
supplied)
includes “not only the right to express one’s views, but also
Article II, Section 26
Section 26. The State shall guarantee equal access to other cognate rights relevant to the free communication [of]
opportunities for public service, and prohibit political dynasties as ideas, not excluding the right to be informed on matters of
may be defined by law. (Emphasis supplied) public concern.”301 She adds:
And since so many imponderables may affect the outcome of
Thus, in these cases, we have acknowledged the elections — qualifications of voters and candidates, education,
means of transportation, health, public discussion, private
Constitution’s guarantee for more substantive expressive
animosities, the weather, the threshold of a voter’s resistance to
freedoms that take equality of opportunities into pressure — the utmost ventilation of opinion of men and issues,
consideration during elections. through assembly,

The other view _______________

297 See Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124


However, there is also the other view. This is that Harv. L. Rev. 145 (2010).
considerations of equality of opportunity or equality in the 298 Id., at pp. 155-156.
ability of citizens as speakers should not have a bearing in 299 Id., at p. 156.
free speech doctrine. 300 Id., at p. 157.
111 301 J. Romero, Dissenting Opinion in Osmeña v. COMELEC, supra note
216 at p. 736; p. 496 [Per J. Mendoza, En Banc].
VOL. 747, JANUARY 21, 2015 111 112
The Diocese of Bacolod vs. Commission on Elections 112 SUPREME COURT REPORTS ANNOTATED
The Diocese of Bacolod vs. Commission on Elections The Diocese of Bacolod vs. Commission on Elections
association and organizations, both by the candidate and the and thereby ‘equaliz[ing] access to the political
voter, becomes a sine qua non for elections to truly reflect the will of arena.’”306 The majority did not use the equality-based
the electorate.302 (Emphasis supplied) paradigm.
One flaw of campaign expenditure limits is that “any limit
Justice Romero’s dissenting opinion cited an American placed on the amount which a person can speak, which takes
case, if only to emphasize free speech primacy such that out of his exclusive judgment the decision of when enough is
“courts, as a rule are wary to impose greater restrictions as to enough, deprives him of his free speech.”307
any attempt to curtail speeches with political content,”303 thus: Another flaw is how “[a]ny quantitative limitation on
the concept that the government may restrict the speech of some political campaigning inherently constricts the sum of public
elements in our society in order to enhance the relative voice of the
information and runs counter to our ‘profound national
others is wholly foreign to the First Amendment which was
commitment that debate on public issues should be
designed to “secure the widest possible dissemination of
information from diverse and antagonistic sources” and “to assure uninhibited, robust, and wide-open.’”308
unfettered interchange of ideas for the bringing about of political In fact, “[c]onstraining those who have funds or have been
and social changes desired by the people.”304 able to raise funds does not ease the plight of those without
funds in the first place . . . [and] even if one’s main concern is
This echoes Justice Oliver Wendell Holmes’ submission slowing the increase in political costs, it may be more effective
“that the market place of ideas is still the best alternative to to rely on market forces to achieve that result than on active
censorship.”305 legal intervention.”309According to Herbert Alexander, “[t]o
Parenthetically and just to provide the whole detail of the oppose limitations is not necessarily to argue that the sky’s
argument, the majority of the US Supreme Court in the the limit [because in] any campaign there are saturation
campaign expenditures case of Buckley v. Valeo “condemned levels and a point where spending no longer pays off in votes
restrictions (even if content-neutral) on expressive liberty per dollar.”310
imposed in the name of ‘enhanc[ing] the relative voice of
others’ III.C.
When private speech amounts
_______________ to election paraphernalia
302 Id., at p. 742; p. 503. _______________
303 Id., at p. 755; p. 516.
304 Id., at p. 750; p. 511, quoting Buckley v. Valeo, 424 US 1 (1976), 306 See Joshua Cohen, Freedom of Expression, supra note 281 at p. 202
citing New York Times v. Sullivan, 84 S Ct. 710, quoting Associated Press v. (1996), citing Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).
United States, 326 US 1 (1945) and Roth v. United States, 484. 307 See Joel L. Fleishman, Freedom of Speech and Equality of Political
305 J. Carpio, Dissenting opinion in Soriano v. Laguardia, G.R. No. Opportunity: The Constitutionality of the Federal Election Campaign Act of
164785, March 15, 2010, 615 SCRA 254, 281 [Per J. Velasco, Jr., En 1971, 51 N.C.L. Rev. 389, 453 (1973).
Banc], citing the Dissenting Opinion of J. Holmes in Abrams v. United States, 308 Id., at p. 454.
250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919). 309 Id., at p. 479.
113 310 Id.
VOL. 747, JANUARY 21, 2015 113 114
114 SUPREME COURT REPORTS ANNOTATED consider during elections is unconstitutional. Such regulation
The Diocese of Bacolod vs. Commission on Elections is inconsistent with the guarantee of according the fullest
115
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human VOL. 747, JANUARY 21, 2015 115
potentiality and the effect of speech. It valorizes the ability of The Diocese of Bacolod vs. Commission on Elections
human beings to express and their necessity to relate. On the possible range of opinions coming from the electorate
other hand, a complete guarantee must also take into including those that can catalyze candid, uninhibited, and
consideration the effects it will have in a deliberative robust debate in the criteria for the choice of a candidate.
democracy. Skewed distribution of resources as well as the This does not mean that there cannot be a specie of speech
cultural hegemony of the majority may have the effect of by a private citizen which will not amount to an election
drowning out the speech and the messages of those in the paraphernalia to be validly regulated by law.
minority. In a sense, social inequality does have its effect on Regulation of election paraphernalia will still be
the exercise and effect of the guarantee of free speech. Those constitutionally valid if it reaches into speech of persons who
who have more will have better access to media that reaches are not candidates or who do not speak as members of a
a wider audience than those who have less. Those who political party if they are not candidates, only if what is
espouse the more popular ideas will have better reception regulated is declarative speech that, taken as a whole, has for
than the subversive and the dissenters of society. To be really its principal object the endorsement of a candidate only. The
heard and understood, the marginalized view normally regulation (a) should be provided by law, (b) reasonable, (c)
undergoes its own degree of struggle. narrowly tailored to meet the objective of enhancing the
The traditional view has been to tolerate the viewpoint of opportunity of all candidates to be heard and considering the
the speaker and the content of his or her expression. This primacy of the guarantee of free expression, and (d)
view, thus, restricts laws or regulation that allows public demonstrably the least restrictive means to achieve that object.
officials to make judgments of the value of such viewpoint or The regulation must only be with respect to the time, place, and
message content. This should still be the principal approach. manner of the rendition of the message. In no situation may
However, the requirements of the Constitution regarding the speech be prohibited or censored on the basis of its content.
equality in opportunity must provide limits to some For this purpose, it will not matter whether the speech is made
expression during electoral campaigns. with or on private property.
Thus clearly, regulation of speech in the context of electoral This is not the situation, however, in this case for two
campaigns made by candidates or the members of their reasons. First, as discussed, the principal message in the twin
political parties or their political parties may be regulated as tarpaulins of petitioners consists of a social advocacy.
to time, place, and manner. This is the effect of our rulings Second, as pointed out in the concurring opinion of Justice
in Osmeña v. COMELEC and National Press Club v. Antonio Carpio, the present law — Section 3.3 of Republic Act
COMELEC. No. 9006 and Section 6(c) of COMELEC Resolution No. 9615
Regulation of speech in the context of electoral campaigns — if applied to this case, will not pass the test of reasonability.
made by persons who are not candidates or who do not speak A fixed size for election posters or tarpaulins without any
as members of a political party which are, taken as a whole, relation to the distance from the intended average audience
principally advocacies of a social issue that the public must will be arbitrary. At certain distances, posters measuring 2 by
3 feet could no longer be read by the general public and, hence, 313 Const., Art. III, Sec. 1.
314 Rollo, p. 81.
would render speech meaningless. It will amount to the 315 259 Phil. 707; 180 SCRA 218 (1989) [Per J. Regalado, En Banc].
abridgement of speech with political consequences. 117
116 VOL. 747, JANUARY 21, 2015 117
116 SUPREME COURT REPORTS ANNOTATED
The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections tional guaranties of due process and equal protection of the
IV laws.316(Citation omitted)
Right to property
This court in Adiong held that a restriction that regulates
Other than the right to freedom of expression311 and the where decals and stickers should be posted is “so broad that it
meaningful exercise of the right to suffrage,312 the present case encompasses even the citizen’s private
also involves one’s right to property.313 property.” Consequently, it violates Article III, Section 1 of
317

Respondents argue that it is the right of the state to the Constitution which provides that no person shall be
prevent the circumvention of regulations relating to election deprived of his property without due process of law. This court
propaganda by applying such regulations to private explained:
individuals.314 Property is more than the mere thing which a person owns, it
Certainly, any provision or regulation can be includes the right to acquire, use, and dispose of it; and the
circumvented. But we are not confronted with this possibility. Constitution, in the 14thAmendment, protects these essential
Respondents agree that the tarpaulin in question belongs to attributes.
petitioners. Respondents have also agreed, during the oral Property is more than the mere thing which a person owns. It is
arguments, that petitioners were neither commissioned nor elementary that it includes the right to acquire, use, and dispose of
paid by any candidate or political party to post the material it. The Constitution protects these essential attributes of
property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18
on their walls.
Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and
Even though the tarpaulin is readily seen by the public, the disposal of a person’s acquisitions without control or diminution
tarpaulin remains the private property of petitioners. Their save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v.
right to use their property is likewise protected by the Warley, 245 US 60 [1917])318
Constitution.
In Philippine Communications Satellite Corporation v. This court ruled that the regulation in Adiong violates
Alcuaz:315 private property rights:
Any regulation, therefore, which operates as an effective The right to property may be subject to a greater degree of
confiscation of private property or constitutes an arbitrary or regulation but when this right is joined by a “liberty” interest, the
unreasonable infringement of property rights is void, because it is burden of justification on the part of the Government must be
repugnant to the constitu- exceptionally convincing and irrefutable. The burden is not met in
this case.
_______________
Section 11 of Rep. Act 6646 is so encompassing and invasive that
311 Const., Art. III, Sec. 4. it prohibits the posting or display of elec-
312 Const., Art. V, Sec. 1
_______________
316 Id., at pp. 721-722; pp. 231-232. property is an impermissible encroachments on the right to
317 Adiong v. COMELEC, supra note 164 at p. 720.
property.
318 Id., at p. 721.
118
_______________
118 SUPREME COURT REPORTS ANNOTATED
The Diocese of Bacolod vs. Commission on Elections 319 Id., at pp. 721-722.
tion propaganda in any place, whether public or private, except 119
in the common poster areas sanctioned by COMELEC. This means VOL. 747, JANUARY 21, 2015 119
that a private person cannot post his own crudely prepared personal The Diocese of Bacolod vs. Commission on Elections
poster on his own front door or on a post in his yard. While the V
COMELEC will certainly never require the absurd, there are no Tarpaulin and its message are not religious speech
limits to what overzealous and partisan police officers, armed with
a copy of the statute or regulation, may do.319
We proceed to the last issues pertaining to whether the
COMELEC in issuing the questioned notice and letter
Respondents ordered petitioners, who are private citizens,
violated the right of petitioners to the free exercise of their
to remove the tarpaulin from their own property. The
religion.
absurdity of the situation is in itself an indication of the
At the outset, the Constitution mandates the separation of
unconstitutionality of COMELEC’s interpretation of its
church and state.320 This takes many forms. Article III, Section
powers.
5 of the Constitution, for instance provides:
Freedom of expression can be intimately related with the Section 5. No law shall be made respecting an establishment
right to property. There may be no expression when there is of religion, or prohibiting the free exercise thereof. The free exercise
no place where the expression may be made. COMELEC’s and enjoyment of religious profession and worship, without
infringement upon petitioners’ property rights as in the discrimination or preference, shall forever be allowed. No religious
present case also reaches out to infringement on their test shall be required for the exercise of civil or political rights.
fundamental right to speech.
Respondents have not demonstrated that the present state There are two aspects of this provision.321 The first is the
interest they seek to promote justifies the intrusion into nonestablishment clause.322 Second is the free exercise and
petitioners’ property rights. Election laws and regulations enjoyment of religious profession and worship.323
must be reasonable. It must also acknowledge a private The second aspect is at issue in this case.
individual’s right to exercise property rights. Otherwise, the Clearly, not all acts done by those who are priests,
due process clause will be violated. bishops, ustadz, imams, or any other religious make such act
COMELEC Resolution No. 9615 and the Fair Elections Act immune
intend to prevent the posting of election propaganda in
private property without the consent of the owners of such _______________
private property. COMELEC has incorrectly implemented 320 Const., Art. II, Sec. 6 provides that “[t]he separation of Church and
these regulations. Consistent with our ruling in Adiong, we State shall be inviolable.”
find that the act of respondents in seeking to restrain 321 See Re: Request of Muslim Employees in the Different Courts in Iligan
petitioners from posting the tarpaulin in their own private City (Re: Office Hours), 514 Phil. 31, 38; 477 SCRA 648, 655 (2005)
[Per J. Callejo, Sr., En Banc].
322 See Ebralinag v. The Division Superintendent of Schools of respect for their religious beliefs, [no matter how] “bizarre”
Cebu, supra note 148.
those beliefs
323 See Islamic Da’wah Council of the Philippines, Inc. v. Office of the
Executive Secretary, 453 Phil. 440; 405 SCRA 497 (2003) [Per J. Corona, En
_______________
Banc]. See alsoGerman v. Barangan, 220 Phil. 189; 135 SCRA 514 (1985)
[Per J. Escolin, En Banc].
120 324 See Pamil v. Teleron, 176 Phil. 51; 86 SCRA 413 (1978)
[Per J. Fernando, En Banc].
120 SUPREME COURT REPORTS ANNOTATED 325 Rollo, p. 13.
The Diocese of Bacolod vs. Commission on Elections 326 Ebralinag v. The Division Superintendent of Schools of
from any secular regulation.324 The religious also have a Cebu, supra note 148.
327 Rollo, p. 140.
secular existence. They exist within a society that is regulated 121
by law. VOL. 747, JANUARY 21, 2015 121
The Bishop of Bacolod caused the posting of the tarpaulin. The Diocese of Bacolod vs. Commission on Elections
But not all acts of a bishop amounts to religious expression.
may seem to others.”328 This court found a balance between
This notwithstanding petitioners’ claim that “the views and
the assertion of a religious practice and the compelling
position of the petitioners, the Bishop and the Diocese of
necessities of a secular command. It was an early attempt at
Bacolod, on the RH Bill is inextricably connected to its
accommodation of religious beliefs.
Catholic dogma, faith, and moral teachings. . . .”325
In Estrada v. Escritor,329 this court adopted a policy of
The difficulty that often presents itself in these cases stems
benevolent neutrality:
from the reality that every act can be motivated by moral, With religion looked upon with benevolence and not hostility,
ethical, and religious considerations. In terms of their effect benevolent neutrality allows accommodation of religion under
on the corporeal world, these acts range from belief, to certain circumstances. Accommodations are government policies
expressions of these faiths, to religious ceremonies, and then that take religion specifically into account not to promote the
to acts of a secular character that may, from the point of view government’s favored form of religion, but to allow individuals and
of others who do not share the same faith or may not subscribe groups to exercise their religion without hindrance. Their purpose
to any religion, may not have any religious bearing. or effect therefore is to remove a burden on, or facilitate the exercise
Definitely, the characterizations of the religious of their of, a person’s or institution’s religion. As Justice Brennan
acts are not conclusive on this court. Certainly, our powers of explained, the “government [may] take religion into account . . . to
adjudication cannot be blinded by bare claims that acts are exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would
religious in nature.
otherwise thereby be infringed, or to create without state
Petitioners erroneously relied on the case of Ebralinag v. involvement an atmosphere in which voluntary religious exercise
The Division Superintendent of Schools of Cebu326 in claiming may flourish.”330
that the court “emphatically” held that the adherents of a
particular religion shall be the ones to determine whether a This court also discussed the Lemon test in that case, such
particular matter shall be considered ecclesiastical in that a regulation is constitutional when: (1) it has a secular
nature.327 This court in Ebralinagexempted Jehovah’s legislative purpose; (2) it neither advances nor inhibits relig-
Witnesses from participating in the flag ceremony “out of
_______________
328 Id., at p. 273. excommunication, ordinations of religious ministers,
329 455 Phil. 411; 408 SCRA 1 (2003) [Per J. Puno, En Banc] [CJ. Davide,
administration
Jr., JJ. Austria-Martinez, Corona, Azcuna, Tinga, and Vitug, concurring; J.
Bellosillo, concurring in the result; JJ. Panganiban, Ynares-Santiago, Carpio,
_______________
Carpio-Morales, Callejo, Sr., dissenting; JJ. Quisumbing and Sandoval-
Gutierrez, On Official Leave].
330 Id., at pp. 522-523; p. 121, citing Michael W. 331 Estrada v. Escritor, supra note 329 at p. 506; pp. 106-107,
McConnell, Accommodation of Religion: An Update and a Response to the citing Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).
Critics, 60 (3) Geo. Wash. L. Rev. 685, 688 (1992). 332 Rollo, p. 86.
122 333 371 Phil. 340; 312 SCRA 410 (1999) [Per J. Kapunan, First Division].
123
122 SUPREME COURT REPORTS ANNOTATED
VOL. 747, JANUARY 21, 2015 123
The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections
ion; and (3) it does not foster an excessive entanglement
of sacraments and other activities with attached religious
with religion.331
significance.”334
As aptly argued by COMELEC, however, the tarpaulin, on
its face, “does not convey any religious doctrine of the Catholic
A FINAL NOTE
church.”332 That the position of the Catholic church appears to
coincide with the message of the tarpaulin regarding the RH
We maintain sympathies for the COMELEC in attempting
Law does not, by itself, bring the expression within the ambit
to do what it thought was its duty in this case. However, it
of religious speech. On the contrary, the tarpaulin clearly
was misdirected.
refers to candidates classified under “Team Patay” and “Team
COMELEC’s general role includes a mandate to ensure
Buhay” according to their respective votes on the RH Law.
equal opportunities and reduce spending among candidates
The same may be said of petitioners’ reliance on papal
and their registered political parties. It is not to regulate or
encyclicals to support their claim that the expression on the
limit the speech of the electorate as it strives to participate in
tarpaulin is an ecclesiastical matter. With all due respect to
the electoral exercise.
the Catholic faithful, the church doctrines relied upon by
The tarpaulin in question may be viewed as producing a
petitioners are not binding upon this court. The position of the
caricature of those who are running for public office. Their
Catholic religion in the Philippines as regards the RH Law
message may be construed generalizations of very complex
does not suffice to qualify the posting by one of its members of
individuals and party list organizations.
a tarpaulin as religious speech solely on such basis. The
They are classified into black and white: as belonging to
enumeration of candidates on the face of the tarpaulin
“Team Patay” or “Team Buhay.”
precludes any doubt as to its nature as speech with political
But this caricature, though not agreeable to some, is still
consequences and not religious speech.
protected speech.
Furthermore, the definition of an “ecclesiastical affair”
That petitioners chose to categorize them as purveyors of
in Austria v. National Labor Relations Commission333 cited by
death or of life on the basis of a single issue — and a complex
petitioners finds no application in the present case. The
piece of legislation at that — can easily be interpreted as an
posting of the tarpaulin does not fall within the category of
attempt to stereotype the candidates and party list
matters that are beyond the jurisdiction of civil courts as
organizations. Not all may agree to the way their thoughts
enumerated in the Austria case such as “proceedings for
were expressed, as in fact there are other Catholic dioceses the electorate telling candidates the conditions for their
that chose not to follow the example of petitioners. election. It is the substantive content of the right to suffrage.
Some may have thought that there should be more room to This is a form of speech hopeful of a quality of democracy
consider being more broad-minded and nonjudgmental. Some that we should all deserve. It is protected as a fundamental
may have expected that the authors would give more space to and primordial right by our Constitution. The expression in
practice forgiveness and humility. the medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The
_______________
temporary restraining order previously issued is hereby made
334 Id., at p. 353; pp. 421-422. permanent. The act of the COMELEC in issuing the assailed
124 125
124 SUPREME COURT REPORTS ANNOTATED VOL. 747, JANUARY 21, 2015 125
The Diocese of Bacolod vs. Commission on Elections The Diocese of Bacolod vs. Commission on Elections
But, the Bill of Rights enumerated in our Constitution is notice dated February 22, 2013 and letter dated February
an enumeration of our fundamental liberties. It is not a 27, 2013 is declared unconstitutional.
detailed code that prescribes good conduct. It provides space SO ORDERED.
for all to be guided by their conscience, not only in the act that
they do to others but also in judgment of the acts of others. Sereno (CJ.), Leonardo-De Castro, Del Castillo,
Freedom for the thought we can disagree with can be Villarama, Jr., Perez, Mendoza and Reyes, JJ., concur.
wielded not only by those in the minority. This can often be Carpio, J., See Separate Concurring Opinion.
expressed by dominant institutions, even religious ones. That Velasco, Jr., J., I join the dissent of J. Brion.
they made their point dramatically and in a large way does Brion,** J., On Official Leave.
not necessarily mean that their statements are true, or that Peralta, J., I join J. Carpio’s Opinion.
they have basis, or that they have been expressed in good Bersamin, J., I join the dissent of J. Brion.
taste. Perlas-Bernabe, J., See Separate Concurring Opinion.
Embedded in the tarpaulin, however, are opinions Jardeleza, J., No Part.
expressed by petitioners. It is a specie of expression protected SEPARATE CONCURRING OPINION
by our fundamental law. It is an expression designed to invite
attention, cause debate, and hopefully, persuade. It may be CARPIO, J.:
motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have I join the holding of the ponencia setting aside the “take
very real secular consequences. down” notices1 sent by the Commission on Elections
Certainly, provocative messages do matter for the (COMELEC) to petitioners. My concurrence, however, is
elections. grounded on the fact that such notices, and the administrative
What is involved in this case is the most sacred of speech and statutory provisions on which they are based, are
forms: expression by the electorate that tends to rouse the content-neutral regulations of general applicability
public to debate contemporary issues. This is not speech by repugnant to the Free Speech Clause. Hence, I vote to
candidates or political parties to entice votes. It is a portion of strike down not only the COMELEC notices but also
Section 6(c) of COMELEC Resolution No. 9615, dated 15 exceeded the maximum size for election posters under Section
January 2013 (Resolution 9615), the regulatory basis 3.3 of RA 9006 as implemented by Resolution 9615.
for the COMELEC notices, 127
VOL. 747, JANUARY 21, 2015 127
_______________ The Diocese of Bacolod vs. Commission on Elections
* * As per CJ. Sereno, J. Brion left his vote. See his Dissenting Opinion. Section 3.3 of RA 9006 and Section 6(c) of Resolution
1 Dated 22 February 2013 and 27 February 2013. 9615, Regulations of General Applicability
126
126 SUPREME COURT REPORTS ANNOTATED Section 3.3 of RA 9006 and its implementing rule for the
The Diocese of Bacolod vs. Commission on Elections 2013 elections, Section 6(c) of Resolution 9615, are regulations
and Section 3.3 of Republic Act No. 9006 (RA 9006), of general applicability, covering campaign speech of all —
the statutory basis for Resolution 9615. candidates, noncandidates, political parties and non-political
parties. This conclusion is compelled by the absence of any
Section 3.3 of RA 9006, Section 6(c) of Resolution 9615, provision in RA 9006, and indeed, in any related statutes,
and the COMELEC Notices Repugnant limiting their application only to the campaign speech of
to the Free Speech Clause candidates and political parties. On the contrary, the penal
clause of RA 9006 is couched in broad language encompassing
The COMELEC notices were based on Section 6(c) of within its ambit anyone who breaches its provisions:
Resolution 9615, dated 15 January 2013, which provides: “[v]iolation of th[e] Act and the rules and regulations of the
Lawful Election Propaganda. x x x. COMELEC issued to implement [it] shall be an election
Lawful election propaganda shall include: offense punishable under the first and second paragraphs of
xxxx Section 264 of the Omnibus Election Code.”2 Indeed, RA 9006
c. Posters made of cloth, paper, cardboard or any other regulates a host of other campaign related acts, such as the
material, whether framed or posted, with an area not exceeding two airing and printing of paid political ads (Section 3.4 in relation
feet (2’) by three feet (3’). (Emphasis supplied)
to Section 4) and the conduct of election surveys (Section 5),
which involve not only political parties and
This provision is, in turn, based on Section 3.3 of RA 9006:
candidates but also other individuals or entities who
Lawful Election Propaganda. x x x.
For the purpose of this Act, lawful election propaganda shall
fall within the ambit of these provisions. RA 9006 is a
include: generally applicable law as much as the Omnibus Election
xxxx Code is in the field of election propaganda regulation.
3.3. Cloth, paper or cardboard posters, whether framed or To hold the COMELEC without authority to enforce
posted, with an area not exceeding two (2) feet by three (3) Section 3.3 of RA 9006 against noncandidates and non-
feet x x x. (Emphasis supplied) political parties, despite the absence of any prohibition under
that law, is not only to defeat the constitutional intent behind
The COMELEC required petitioner Navarra to remove the the regulation of “minimiz[ing] election spending”3 but also to
streamer hanging within the compound of the Roman open a backdoor through which candidates and political
Catholic church in Bacolod City because, at six by ten feet, it
parties can indirectly circumvent the myriad campaign night and day, respectively, to promote certain candidates, all
speech regula- paid for by a noncandidate billionaire supporter. Such
bifurcated application of RA 9006’s limitations on the sizes of
_______________
print ads
2 Section 13, third paragraph.
_______________
3 Article IX-C, Section 2(7), Constitution.
128
4 For selected TV and radio broadcast rates during the 2013 elections,
128 SUPREME COURT REPORTS ANNOTATED see GMA Network, Inc. v. Commission on Elections, G.R. No. 205357, 2
The Diocese of Bacolod vs. Commission on Elections September 2014, 734 SCRA 88 (Carpio, J., concurring).
129
tions the government adopted to ensure fair and orderly
elections. VOL. 747, JANUARY 21, 2015 129
“Election spending” refers not only to expenses of The Diocese of Bacolod vs. Commission on Elections
political parties and candidates but also to expenses of (Section 6.15) and maximum broadcast time for TV and
their supporters. (Otherwise, all the limitations on radio campaign ads (Section 6.26) defeats the purpose of
election spending and on what constitutes lawful regulating campaign speech.
election propaganda would be meaningless). Freeing
non-candidates and non-parties from the coverage of RA 9006 Section 3.3 of RA 9006 and Section 6(c) of Resolution
allows them to (1) print campaign ad banners and posters 9615, Content-Neutral Regulations which impermis-
of any size and in any quantity, (2) place TV and radio ads in sibly restrict Freedom of Speech
national and local stations for any length of time, and (3)
place full-page print ads in broadsheets, tabloids and related Section 3.3 of RA 9006 and Section 6(c) of Resolution 9615
media. Obviously, printing posters of any size, placing full- regulate campaign posters by limiting their size to two by
page print ads, and running extended broadcast ads all entail three feet, regardless of what is printed on the face of the
gargantuan costs.4 Yet, under the ponencia’s holding, so long posters. These provisions are classic examples of
as these are done by noncandidates and nonpolitical parties, content-neutral regulations which restrict
the state is powerless to regulate them. the manner by which speech is relayed but not
The second evil which results from treating private the content of what is conveyed. Thus, the notices sent by
campaign speech as absolutely protected (and thus beyond the the COMELEC to petitioner Navarra required the latter to
power of the state to regulate) is that candidates and political remove the streamer in question not because it contained a
parties, faced with the limitations on the size of print ads and message favoring and disfavoring certain senatorial
maximum airtime for TV and radio ads under RA 9006, will candidates who ran in the last elections but because the
have a ready means of circumventing these limitations by streamer, taking into account existing law, was “oversized.”
simply channeling their campaign propaganda activities to Testing the validity of content-neutral regulations like the
supporters who do not happen to be candidates or political statutory and administrative provisions in question, requires
parties. Thus, voters during an election season can one day analysis along four prongs, namely, whether (1) they are
wake up to find print media and broadcast airwaves
_______________
blanketed with political ads, running full-page and airing
5 This provides: “Print advertisements shall not exceed one-fourth (1/4) “minimiz[ing] election spending” and ensuring orderly
page, in broadsheet and one-half (1/2) page in tabloids thrice a week per
elections in light of unmistakable connection between the size
newspaper, magazine or other publications, during the campaign period.”
6 This provides, in relevant parts: “(a) Each bona fide candidate or of
registered political party for a nationally elective office shall be entitled to not
more than one hundred twenty (120) minutes of television advertisement and _______________
one hundred eighty (180) minutes of radio advertisement whether by purchase
or donation. 7 These are commonly referred to as the four prongs of the O’Brien test
(b) Each bona fide candidate or registered political party for a locally from United States v. O’Brien, 391 U.S. 367 (1968), which has been adopted in
elective office shall be entitled to not more than sixty (60) minutes of television this jurisdiction (see Osmeña v. COMELEC, 351 Phil. 692; 228 SCRA 447
advertisement and ninety (90) minutes of radio advertisement whether by (1998); Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571; 357 SCRA
purchase or donation.” 496 (2001).
130 8 Osmeña v. COMELEC, id.
130 SUPREME COURT REPORTS ANNOTATED 9 See Texas v. Johnson, 491 U.S. 397 (1989).
10 See Social Weather Stations, Inc. v. COMELEC, supra, (striking down
The Diocese of Bacolod vs. Commission on Elections Section 5.4 of RA 9006 for failing the third and fourth prongs of
within the constitutional power of the government; (2) they the O’Brien test).
further an important or substantial governmental interest; (3) 131
the governmental interest is unrelated to the suppression of VOL. 747, JANUARY 21, 2015 131
free expression; and (4) the incidental restriction on freedoms The Diocese of Bacolod vs. Commission on Elections
of speech, expression and press is no greater than is essential campaign posters, on the one hand, and the overall cost of
to the furtherance of that interest.7 The level of interest campaigns and orderly dissemination of campaign
required of the government to justify the validity of content- information, on the other hand. As these interests relate to
neutral regulations — “important or substantial” — is lower the reduction of campaign costs and the maintenance of order,
than the most stringent standard of “compelling interest” they are also “unrelated to the suppression of free expression.”
because such regulations are “unrelated to the suppression of It is in the extent of the incidental restriction wrought by
free expression.”8 Proof of compelling interest is required of these regulations on expressive freedoms where they ran
the government only in the scrutiny of content- afoul with the Free Speech Clause.
basedregulations which strike at the core of the freedoms of As crafted, Section 3.3 of RA 9006 provides a uniform and
speech, of expression and of the press protected by the Free fixed size for all campaign posters, two by three
Speech Clause.9Nevertheless, content-neutral feet,11 irrespective of the location where the posters are placed
regulations may still fail constitutional muster if “the in relation to the distance from the nearest possible
incidental restriction on [expressive] freedoms is x x x viewer. Thus, whether placed at a common poster area,
greater than is essential to the furtherance” of the at the gate of a residential house or outside a 30thfloor
proffered government interest.10 condominium unit, the campaign poster must be of the
No serious objections can be raised against the conclusion same size. However, when placed at the 30th floor of a
that it was within the government’s constitutional powers to condominium, the letters in a two by three feet poster would
adopt Section 3.3 of RA 9006 and Section 6(c) of Resolution be so small that they would no longer be readable from the
9615. Nor is there any quarrel that these regulations advance ground or from the street.
the important and substantial government interests of A space of two by three feet can only accommodate so much
number of letters of a particular size to be reasonably visible
to the reader standing from a certain distance. Even if only notices, dated 22 February 2013 and 27 February 2013, of the
the name of a single candidate, the position he seeks, and his Commission on Elec-
party affiliation are printed on the poster, the limited space
_______________
available allows the printing of these data using letters of
relatively small size, compared with those printed in a larger 12 E.g., Section 9 of RA 9006 which provides:
canvass. The size of the letters inevitably shrinks if more Posting of Campaign Materials.—The COMELEC may authorize political
names and data are added to the poster. parties and party list groups to erect common poster areas for their candidates
in not more than ten (1) public places such as plazas,
The practical effect of the fixed-size rule under Section 3.3
markets, barangay centers and the like, wherein candidates can post, display
of RA 9006 (and its implementing rule) is to further narrow or exhibit election propaganda: Provided, That the size of the poster areas
the choices of poster locations for anyone wishing to display shall not exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be
_______________ authorized to erect common poster areas in not more than ten (10) public
places, the size of which shall not exceed four (4) by six (6) feet or its
11 The dimensions for streamers for display during rallies or announcing equivalent.
its holding are different (three by eight feet) (Section 3.3). Candidates may post any lawful propaganda material in private places
132 with the consent of the owner thereof, and in public places or property which
132 SUPREME COURT REPORTS ANNOTATED shall be allocated equitably and impartially among the candidates.
133
The Diocese of Bacolod vs. Commission on Elections VOL. 747, JANUARY 21, 2015 133
them in any of the venues allowed by law.12 Voters who The Diocese of Bacolod vs. Commission on Elections
wish to make known to the public their choice of candidates
tions for being violative of Section 4, Article III of the
(or for that matter, candidates who wish to advertise their
Constitution.
candidacies) through the display of posters are precluded from
doing so from certain areas not because these areas are off-
DISSENTING OPINION
limits but because, for reasons of geography vis-à-vis the size
of the poster, their contents simply become illegible. Such
BRION, J.:
restriction on campaign speech appears to me to be “greater
than is essential” to advance the important government
Prefatory Statement
interests of minimizing election spending and ensuring
orderly elections. To satisfy the strictures of the Free Speech
The present case asks us to determine whether respondent
Clause, Congress needs to craft legislation on the sizing of
Commission on Elections (Comelec) should be prevented from
campaign posters and other paraphernalia with sufficient
implementing the size restrictions in Republic Act No. 9006
flexibility to address concerns inherent in the present fixed-
(RA 9006, otherwise known as the Fair Elections Act) to the
dimension model.
six by ten feet tall tarpaulin posted by petitioner Diocese of
Accordingly, I vote to GRANT the petition
Bacolod containing the message “RH LAW IBASURA” during
and DECLARE UNCONSTITUTIONAL (1) Section 3.3 of
the election period.
Republic Act No. 9006; (2) Section 6(c) of COMELEC
The ponente opts to give due course to the petition despite
Resolution No. 9615, dated 15 January 2013; and (3) the
obvious jurisprudential, practical and procedural infirmities
that will prejudicially impact on established rules to the CIRCUMSTANCES THAT SHOULD DISSUADE THIS
detriment of the electoral process; that confuses the lines COURT FROM RULING ON A CASE THAT WEIGHS THE
between right of free speech and election propaganda; and RIGHTS OF FREE SPEECH AND DEMOCRATIC
that inordinately disregards constitutional electoral values ELECTORAL VALUES.
through its misplaced views on the right to free speech — a A point that should not be missed is that the disputed
right that can exist only if this country continues to be a tarpaulin is covered by regulations under RA 9006, as it falls
democratic one where leaders are elected under within the definition of election propaganda. The key in
constitutionally established electoral values and orderly determining whether a material constitutes as election
processes. propaganda lies in whether it is intended to promote the
Thus, the ponente declares as unconstitutional Section 3.3 election of a list of candidates it favorsand/or oppose
of RA 9006, and its implementing rule, Section 6(c) of Comelec the election of candidates in another list. RA 9006 did
Resolution No. 9615, for violating the freedom of speech. In so not, as the ponente infers, require that the material be posted
doing, it classifies the size restrictions in RA 9006 as a by, or in behalf of the candidates and/or political parties.
content-based regulation and applied the strict scrutiny test Lastly, the assailed law is a valid content-neutral
to a regulation of a poster’s size. regulation on speech, and is thus not unconstitutional. The
In my view, the petition prematurely availed of the Court’s assailed regulation does not prohibit the posting of posters;
power of judicial review BY OPENLY DISREGARDING does not limit the number of allowable posters that may be
ESTABLISHED COMELEC PROCESSES BY BYPASSING posted; and does not even restrict the place where election
THE COMELEC EN BANC. This is a legal mortal sin that propaganda may be posted. It only regulates the posters’
will sow size.
134 To reiterate, our decision in the present case sets the tone
134 SUPREME COURT REPORTS ANNOTATED in resolving future conflicts between the values before us.
The Diocese of Bacolod vs. Commission on Elections While freedom of speech is paramount, it does have its limits.
havoc in future cases before this Court. The petition We should thus be careful in deciding the present case, such
consequently failed to show any prima facie case of grave 135
abuse of discretion on the part of the Comelec, as it had not VOL. 747, JANUARY 21, 2015 135
yet finally decided on its course of action. The Diocese of Bacolod vs. Commission on Elections
Most importantly, the issues the petition presents have that in recognizing one man’s right to speak, we do not end
now been MOOTED and do not now present any LIVE up sacrificing the ideals in which our republican, democratic
CONTROVERSY. The Court will recall that we immediately nation stands upon.
issued a temporary restraining order to halt further Comelec IN SUM, THE MORE PRUDENT APPROACH FOR THIS
action, so that the petitioner was effectively the prevailing COURT IS TO SIMPLY DISMISS THE PETITION FOR
party when the elections — the critical time involved in this MOOTNESS AND PROCEDURAL INFIRMITIES, AND TO
case — took place. Subsequently, the interest advocated in the PROCEED TO THE WEIGHING OF CONSTITUTIONAL
disputed tarpaulin was decided by this Court to the VALUES IN A FUTURE LIVE AND MORE APPROPRIATE
satisfaction of the public at large, among them the Church CASE WHERE OUR RULING WILL CLARIFY AND
whose right to life views prevailed. THESE ARE ELUCIDATE RATHER THAN CONFUSE.
present petition has triggered the Court’s expanded
I. Factual Antecedent jurisdiction since the Comelec’s letter and notice threaten the
fundamental right to speech.
This case reached us through a special civil action To be sure, the concept of judicial power under the 1987
for certiorariand prohibition with application for preliminary Constitution recognizes its (1) traditional jurisdiction to settle
injunction and temporary restraining order under Rule 65 of actual cases or controversies; and (2) expanded jurisdiction to
the Rules of Court. The petition assails the Comelec’s Notice determine whether a government agency or instrumentality
to Remove Campaign Materials that it issued through committed a grave abuse of discretion.1 The exercise of either
Election Officer Mavil V. Majarucon on February 22, 2013, power could pave the way to the Court’s power of judicial
and through Comelec Law Director Esmeralda Amora-Ladra review, the Court’s authority to strike down acts of the
on February 27, 2013. legislative and/or executive, constitutional bodies or
The assailed notices direct the petitioners to remove the administrative agencies that are contrary to the
tarpaulin (subject poster) they placed within a private Constitution.2
compound housing at the San Sebastian Cathedral of Bacolod Judicial review under the traditional jurisdiction of the
on February 21, 2013 for exceeding the size limitations Court requires the following requirements of justiciability: (1)
on election propaganda. The notice dated February 27, there must be an actual case or controversy calling for the
2013 warned the petitioners that the Comelec Law exercise of judicial power; (2) the person challenging the act
Department would be forced to file an election offense case must have the standing to question the validity of the
against them if the subject poster would not be removed. subject act or issuance; otherwise stated, he must have a
The petitioners responded by filing the present petition personal and substantial interest in the case such that he has
assailing the two notices the Comelec sent to them on the sustained, or will sustain, direct injury as a result of its
ground that the poster is not a campaign material, and is enforcement; (3) the question of constitutionality must be
hence outside the coverage of Comelec Resolution No.
_______________
9615. The petitioners also supported their position by
invoking their rights to freedom of 1 See J. Brion’s discussion on the Power of Judicial Review in his
expression and freedom of religion. Concurring Opinion in Imbong v. Ochoa, Jr., G.R. No. 204819, April 8, 2014,
136 721 SCRA 146, 487-489.
136 SUPREME COURT REPORTS ANNOTATED 2 Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009, 583 SCRA
119, 128-129.
The Diocese of Bacolod vs. Commission on Elections 137
II. Procedural Arguments VOL. 747, JANUARY 21, 2015 137
The Diocese of Bacolod vs. Commission on Elections
A. Reviewability of the assailed notices as an raised at the earliest opportunity; and (4) the issue of
administrative act of the Comelec constitutionality must be the very lis mota of the case.3
Failure to meet any of these requirements justifies the
The ponente posits that a judicial review of the size Court’s refusal to exercise its power of judicial review under
limitations under RA 9006 is necessary, as it has a chilling the Court’s traditional power. The Court, however, has, in
effect on political speech. According to the ponente, the several instances, opted to relax one or more of these
requirements to give due course to a petition presenting importance doctrine reflects the former’s distinct nature and
issues of transcendental importance to the nation. origin. The Court’s expanded jurisdiction roots from the
In these cases, the doctrine of transcendental importance constitutional commissioners’ perception of the political
relaxes the standing requirement, and thereby indirectly question doctrine’s overuse prior to the 1987 Constitution, a
relaxes the injury embodied in the actual case or controversy situation that arguably contributed to societal unrest in the
requirement. Note at this point that an actual case or years preceding the 1987 Constitution.
controversy is present when the issues it poses are ripe for The political question doctrine prevents the Court from
adjudication, that is, when the act being challenged has had a deciding cases that are of a political nature, and leaves the
direct adverse effect on the individual challenging decision to the elected-officials of government. In other words,
it. Standing, on the other hand, requires a personal and the Court, through the political question doctrine, defers to
substantial interest manifested through a direct injury that the judgment and discretion of the Executive and Legislature,
the petitioner has or will sustain as a result of the questioned matters that involve policy because they are the people’s
act. elected officials and hence are more directly accountable to
Thus, when the standing is relaxed because of the them.
transcendental importance doctrine, the character of the The 1987 Constitution, recognizing the importance of the
injury presented to fulfill the actual case or controversy Court’s active role in checking abuses in government, relaxed
requirement is likewise tempered. When we, for instance, say the political question doctrine and made it a duty upon the
that the petitioners have no standing as citizens or as Court to determine whether there had been abuses in the
taxpayers but we nevertheless give the petition due course, government’s exercise of discretion and consequently nullify
we indirectly acknowledge that the injury that they had or such actions that violate the Constitution albeit in the narrow
will sustain is not personally directed towards them, but to and limited instances of grave abuse of discretion. Thus, when
the more general and abstract Filipino public. a government agency’s exercise of discretion is so grave as to
A readily apparent trend from jurisprudence invoking the amount to an excess or lack of jurisdiction, it becomes the duty
transcendental importance doctrine shows its application in to step in and check for violations of the Constitution. In these
cases where the government has committed grave abuse of instances, the political question doctrine cannot prevent the
discretion amounting to lack of, or excess of jurisdiction. This Court from determining whether the government gravely
abused its jurisdiction, against the back drop of the
_______________
Constitution.
3 Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 Necessarily, the government’s act of grave abuse of
SCRA 1, 35; and Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng discretion, more so if it has nationwide impact, involves a
mga Manggagawang Pilipino, Inc., 460 Phil. 830, 842; 415 SCRA 44, 133 matter of transcendental importance to the nation. On the
(2003).
other hand, when the government’s act involves a legitimate
138
exercise of discretion, or amounts to an abuse of discretion
138 SUPREME COURT REPORTS ANNOTATED
that is not grave, then the need to temper standing
The Diocese of Bacolod vs. Commission on Elections
requirements
strong correlation between the exercise of the Court’s 139
expanded jurisdiction and its use of the transcendental VOL. 747, JANUARY 21, 2015 139
The Diocese of Bacolod vs. Commission on Elections 140 SUPREME COURT REPORTS ANNOTATED
through the transcendental importance doctrine is not The Diocese of Bacolod vs. Commission on Elections
apparent. the enforcement and administration of election laws.
This correlation between the Court’s use of the Under Section 2(6), Article IX-C of the Constitution, the
transcendental doctrine requirement and its eventual Comelec is expressly given the power to “prosecute cases of
exercise of the power of judicial review under its expanded violations of election laws, including acts or omissions
jurisdiction warrants a review, prima facie, of whether there constituting election frauds, offenses, and malpractices.” The
had been a grave abuse of discretion on the part of constitutional grant to the Comelec of the power to investigate
government. Where there is a showing prima facie of grave and to prosecute election offenses as an adjunct to the
abuse, the Court relaxes its locus standi requirement (and enforcement and administration of all election laws is
indirectly its actual case or controversy requirement) through intended to enable the Comelec to effectively ensure to the
the transcendental importance doctrine. Where there is no people the free, orderly, and honest conduct of elections.4
showing of prima facie grave abuse, then the requirements of This administrative function is markedly distinct from the
justiciability are applied strictly. Comelec’s two other powers as an independent government
Thus, translated in terms of the Court’s expanded agency established under the 1987 Constitution, i.e.,
jurisdiction, the actual case or controversy requirement is its quasi-legislative power to issue rules and regulations to
fulfilled by a prima facieshowing of grave abuse of discretion. implement the provisions of the 1987 Constitution,5 the
This approach reflects the textual requirement of grave abuse Omnibus Election Code,6 and other election laws;7 and
of discretion in the second paragraph of Article VIII, Section its quasi-
1 of the 1987 Constitution. As I have earlier pointed out in my
separate opinion in Araullo v. Aquino, justiciability under the _______________
expanded judicial power expressly and textually depends only 4 Pimentel, Jr. v. COMELEC, 352 Phil. 424; 289 SCRA 586 (1998).
on the presence or absence of grave abuse of discretion, as 5 Article IX-C, Section 2 of the 1987 Constitution provides:
distinguished from a situation where the issue of Section 2. The Commission on Elections shall exercise the following
constitutional validity is raised within a “traditionally” powers and functions:
(1) Enforce and administer all laws and regulations relative to the
justiciable case which demands that the requirement of actual conduct of an election, plebiscite, initiative, referendum, and recall. x x x
controversy based on specific legal rights must exist. 6 Sec. 52. Powers and functions of the Commission on Elections.—In
That a case presents issues of transcendental importance, addition to the powers and functions conferred upon it by the Constitution, the
on the other hand, justifies direct resort to this Court without Commission shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections for the purpose
first complying with the doctrine of hierarchy of courts. of ensuring free, orderly and honest elections, and shall:
A review of the petition shows that it has failed to show xxxx
a prima facie case of grave abuse of discretion on the part of (c) Promulgate rules and regulations implementing the provisions of this
Code or other laws which the Commission is required to enforce and
the Comelec.
administer, and require the payment of legal fees and collect the same in
The petition characterizes the notices as administrative payment of any business done in the Commission, at rates that it may provide
acts of the Comelec that are outside the latter’s jurisdiction to and fix in its rules and regulations.
perform. The Comelec’s administrative function refers to 141
140 VOL. 747, JANUARY 21, 2015 141
The Diocese of Bacolod vs. Commission on Elections The Diocese of Bacolod vs. Commission on Elections
judicial power to resolve controversies arising from the honest elections.11 The Court recognizes this reality and
enforcement of election laws, and to be the sole judge of all concedes that it has no general powers of supervision over the
pre-proclamation controversies and of all contests relating to Comelec except those specifically granted by the
the elections, returns, and qualifications.8 Constitution, i.e., to review its decisions, orders and rulings
The nature of the assailed action of the Comelec is essential within the limited terms of a petition for certiorari.12
to determine the proper remedy by which a review of its Thus, the Court reviews Comelec’s administrative
actions can reach this Court. As a general rule, an acts only by way of exception, when it acts capriciously
administrative order of the Comelec is not an or whimsically, with grave abuse of
appropriate subject of a special civil action for discretion amounting to lack or excess of jurisdiction.
certiorari.9 Necessarily, this invokes the Court’s expanded jurisdiction
Through jurisprudence, the Court has clarified that the under the second paragraph of Article VIII, Section 1.
petition for certiorari under Rule 64 in relation to Rule 65 of That there is an alleged grave abuse of discretion on the
the Rules of Court covers only the Comelec’s quasi-judicial part of Comelec, however, does not automatically mean that
functions.10 By reason of its distinct role in our scheme of the petition should be given due course. It has to meet the
government, the Comelec is allowed considerable latitude in requirements of justiciability which, under the terms of the
devising means and methods to ensure the accomplishment of Court’s expanded judicial power, has been translated to mean
the great objective for which it was created — free, orderly a prima facie showing of a governmental entity, office or
and official granted discretionary authority to act and that
this authority has been gravely abused. There can be
_______________
no prima facie showing of grave abuse of discretion unless
x x x. See Bedol v. Commission on Elections, G.R. No. 179830, December something has already been done13 or has taken place under
3, 2009, 606 SCRA 554. the law14 and the petitioner sufficiently alleges the existence
7 See, for instance, Section 26, Rep. Act No. 8436. of a
8 Section 2. The Commission on Elections shall exercise the following
powers and functions: x x x _______________
(2) Exercise exclusive original jurisdiction over all contests relating to
the elections, returns, and qualifications of all elective regional, provincial, 11 Sumulong v. Commission on Elections, 73 Phil. 288, 294-295 (1941),
and city officials, and appellate jurisdiction over all contests involving elective cited in Espino v. Zaldivar, 129 Phil. 451, 474; 21 SCRA 1204, 1224 (1967).
municipal officials decided by trial courts of general jurisdiction, or involving 12 Macalintal v. Commission on Elections, G.R. No. 157013, July 10,
elective barangay officials decided by trial courts of limited jurisdiction. 2003, 405 SCRA 614.
Decisions, final orders, or rulings of the Commission on Elections contests 13 In the case of a challenged law or official action, for instance, the Court
involving elective municipal and barangay offices shall be final, executory, will not consider an issue ripe for judicial resolution, unless something had
and not appealable. already been done. Imbong v. Ochoa, Syjuico v. Abad; Bayan
9 Macabago v. Commission on Elections, G.R. No. 152163, November 18, Telecommunications v. Republic.
2002, 392 SCRA 178. 14 Mariano, Jr. v. Commission on Elections, G.R. No. 118577, March 7,
10 Jalosjos v. Commission on Elections, G.R. No. 205033, June 18, 2013, 1995, 242 SCRA 211.
698 SCRA 742, 752-753. 143
142
VOL. 747, JANUARY 21, 2015 143
142 SUPREME COURT REPORTS ANNOTATED
The Diocese of Bacolod vs. Commission on Elections Comelec Resolution No. 9615 allegedly violated their
threatened or immediate injury to itself as a result of the constitutional rights to freedom of speech and religion.
gravely abusive exercise of discretion.15 This issue could have been best decided by the Comelec,
In the case of an administrative agency (more so, if it had the petitioners followed the regular course of procedure
involves an independent constitutional body), a matter cannot in the investigation and prosecution of election offense
be considered ripe for judicial resolution unless cases. The assailed action of Comelec, after all,
administrative remedies have been exhausted.16 Judicial contained a warning against possible prosecution for
review is appropriate only if, at the very least, those who an election offense that would have had to undergo an
have the power to address the petitioner’s concerns have entire process before it is filed before the proper
been given the opportunity to do so. In short, the tribunal. This process allows suspected election offenders to
requirement of ripeness does not become less relevant under explain why an election offense should not be filed against
the courts’ expanded judicial power. them, and for the Comelec to consider the explanation.
In this light, I find it worthy to note that that the petition Comelec Resolution No. 9386 (Rules of Procedure in the
challenges RA 9006 and Comelec Resolution No. Investigation and Prosecution of Election Offense
9615 not because its text, on its face, violates Cases in the Commission on Elections), in particular,
fundamental rights,363 but because Comelec provides that once a complaint is initiated, an investigating
erroneously applied an otherwise constitutional law. officer would have to conduct a preliminary investigation to
Comelec’s administrative act of including the petitioners’ determine whether it warrants prosecution. At this stage, the
poster within the coverage of respondent(s) to the complaint may submit his counter-
affidavit and other supporting documents for the complaint’s
_______________ dismissal.18 The investigating officer may also hold a hearing
15 Province of North Cotabato v. Government of the Republic of the _______________
Philippines Peace Panel, 589 Phil. 463, 481; 568 SCRA 402, 451 (2008).
16 See Corales v. Republic, G.R. No. 186613, August 27, 2013, 703 SCRA 18 Section 6 of Comelec Resolution No. 9386 provides:
623. Section 6. Conduct of Preliminary Investigation.—Within ten (10) days
17 This is in contrast to my discussion of a prima facie grave abuse of from receipt of the Complaint, the investigating officer shall issue a subpoena
discretion in Imbong v. Ochoa, Jr. In Imbong, the petition alleged (and the to the respondent/s, attaching thereto a copy of the Complaint, Affidavits and
Court eventually concluded) that the text of the Reproductive Health Law
other supporting documents, giving said respondent/s ten (10) days from
violates the right to life of the unborn child in the Constitution. Congress, in
receipt within which to submit Counter-Affidavits and other supporting
enacting a law that violates a fundamental right, committed a grave abuse of documents. The respondent shall have the right to examine all other evidence
discretion. Thus, citizens have an interest in stopping the implementation of submitted by the complainant. Otherwise, the Investigating officer shall
an unconstitutional law that could cause irreparable injury to the countless dismiss the Complaint if he finds no ground to continue with the inquiry. Such
unborn. Counter-Affidavits and other supporting evidence submitted by the
The constitutionality of the text of RA 9006, on the other hand, is not in
respondent shall be furnished by the latter to the complainant.
question in the present case. What the petitioners assail is their inclusion If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
within the coverage of election propaganda regulations in RA 9006 and Counter-Affidavits within the ten (10) day period, the inves-
Comelec Resolution No. 9615.
145
144
VOL. 747, JANUARY 21, 2015 145
144 SUPREME COURT REPORTS ANNOTATED
The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections
to propound clarificatory questions to the parties and their trial, he shall recommend the dismissal of the complaint;
otherwise, he shall prepare a recommendation to
_______________
prosecute, and the corresponding Information.20
tigating officer shall base his Resolution on the evidence presented by the Whichever course he takes, the investigating officer is
complainant. required to forward the records of the case to the
If the investigating officer believes that there are matters to be clarified, Commission En Banc (in cases investigated by the Law
he may set a hearing to propound clarificatory questions to the parties or their
Department or the Regional Election Director) or to the
witnesses, during which the parties shall be afforded an opportunity to be
present, but without the right to examine or cross-examine. If the parties so Regional Election Director (in cases investigated by the
desire, they may submit questions to the investigating officer which the latter Assistant Regional Election Director, Regional Election
may propound to the parties or parties or witnesses concerned. Attorney, or Provincial Election Supervisor or any of the
Thereafter, the investigation shall be deemed concluded, and the
Commission’s lawyers assigned in the field office) for their
investigating officer shall resolve the case within thirty (30) days therefrom.
Upon the evidence thus adduced, the investigating officer shall determine approval or disapproval. In the latter case, the resolution
whether or not there is sufficient ground to hold the respondent for trial. of the Regional Election Director may be subject of a
Where the respondent is a minor, the investigating officer shall not motion for reconsideration and, if need be, a petition for
conduct the preliminary investigation unless the child respondent shall have
first undergone the requisite proceedings before the Local Social Welfare
review with the COMELEC En Banc.21
Development Officer pursuant to Republic Act No. 9344, otherwise known as In the case before us, the petitioners ask us to exercise our
the “Juvenile Justice and Welfare Act of 2006.” power of judicial review over the action of the
No motion, except on the ground of lack of jurisdiction or request for COMELEC’s Election Officer, Mavil Majarucon, who
extension of time to submit Counter-Affidavits shall be allowed or granted
except on exceptionally meritorious cases. Only one (1) Motion for Extension
ordered the petitioners to remove the subject poster, and
to file Counter-Affidavit for a period not exceeding ten (10) days shall be over the action of Director Esmeralda Amora-Ladra of
allowed. The filing of Reply-Affidavits, Rejoinder-Affidavits, Memoranda and the Comelec Law Department, reiterating the previous
similar pleadings are likewise prohibited. order with a warning of possible criminal prosecution
A Memorandum, Manifestation or Motion to Dismiss is a prohibitive
pleading and cannot take the place of a Counter-Affidavit unless the same is — without any other action by the Comelec at its higher
made by the respondent himself and verified. levels as the established procedures provide.
When an issue of a prejudicial question is raised in the Counter-Affidavit, Contrary to the petitioners’ allegation that they “have no
the investigating officer shall suspend preliminary investigation if its
other plain, speedy, and adequate remedy, the above de-
existence is satisfactorily established. All orders suspending the preliminary
investigation based on existence of prejudicial question issued by the
_______________
investigating officer shall have the written approval of the Regional Election
Director or the Director of the Law Department, as the case may be.
19 Comelec Resolution No. 9386, Section 6.
146
20 Id., Section 8.
146 SUPREME COURT REPORTS ANNOTATED 21 Id., Sections 11 and 12.
The Diocese of Bacolod vs. Commission on Elections 147
witnesses. The parties may even submit questions to the VOL. 747, JANUARY 21, 2015 147
investigating officer, which the latter may propound to the The Diocese of Bacolod vs. Commission on Elections
parties or parties or witnesses concerned.19 scribed procedure before the Comelec clearly shows
After preliminary investigation, the investigating officer otherwise. By immediately invoking remedies before this
has two options: if he finds no cause to hold the respondent for Court, the petitioners deprived the Comelec itself of the
opportunity to pass upon the issue before us — a tance, which only concern the propriety of a direct resort
procedure critical in a certiorariproceeding. In short, the to the Supreme Court instead of the lower courts, and not the
direct invocation of judicial intervention is question of whether judicial intervention is proper in the first
clearly premature. place. As I concluded above, the direct invocation of judicial
In the interest of orderly procedure and the respect for an intervention is as yet premature.
independent constitutional commission such as the Comelec,
on matters that are prima facie within its jurisdiction, the B. The petition is already
expansion of the power of judicial review could not have moot and academic
meant the power to review any and all acts of a
department or office within an administrative Aside from the petition’s premature recourse to the Court,
framework. the legal issues it presents has already become moot and
While I agree with the ponencia that Section 2(3), Article academic.
IX-C does not grant the Comelec the power to determine “any A petition becomes moot and academic when it “ceases to
and all” issues arising during elections, the Comelec under present a justiciable controversy by virtue of supervening
this provision can certainly decide whether to initiate a events, so that a declaration thereon would be of no practical
preliminary investigation against the petitioners. It can use or value.”22A case becomes moot and academic when there
decide based on the arguments and pieces of evidence is no more actual controversy between the parties, or no useful
presented during the preliminary investigation — whether purpose can be served in passing upon the merits.23
there is probable cause to file an information for an election The passage of the election period has effectively made the
offense against the petitioners. This determination is even issues in the present petition moot and academic. Any
subject to review and reconsideration, as discussed in the decision on our part — whether for the validity or invalidity
above described process. of the Comelec’s actions would no longer affect the rights of
To be sure, this is a matter that the Comelec should have either the petitioners to post the subject posters, or the
been given first an opportunity to resolve before the Comelec to prosecute election offenses.
petitioners directly sought judicial recourse. While the
_______________
freedoms invoked by the petitioners certainly occupy
preferential status in our hierarchy of freedoms, the Court 22 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA
cannot second-guess what the Comelec’s action would have 160, 213-214, citing Province of Batangas v. Romulo, G.R. No. 152774, May
been, particularly when the matters before us are nothing 27, 2004, 429 SCRA 736, Banco Filipino Savings and Mortgage Bank v.
Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129, Vda. de Dabao
more than the Election Officer Majarucon’s notice and the
v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA 91, Paloma
Director Amora-Ladra’s order. v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA
In these lights, I see no occasion to discuss the traditional 590, Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-
rules on hierarchy of courts and transcendental impor- 56, January 26, 2004, 421 SCRA 21 and Lacson v. Perez, G.R. No. 147780, May
148 10, 2001, 357 SCRA 756.
23 Tantoy, Sr. v. Abrogar, 497 Phil. 615; 458 SCRA 301 (2005).
148 SUPREME COURT REPORTS ANNOTATED 149
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The Diocese of Bacolod vs. Commission on Elections
The present petition had been filed to assail an 150
administrative act of the Comelec, which warned the 150 SUPREME COURT REPORTS ANNOTATED
petitioners of a possible prosecution should they continue The Diocese of Bacolod vs. Commission on Elections
posting election propaganda that do not comply with the size (whether for its validity or invalidity) would no longer have
requirements under RA 9006. The Letter issued by Comelec any impact on the petitioners and respondent.
Director Amora-Ladra, in particular, advised compliance with To be sure, the issue of the constitutionality of the poster’s
the size requirements, otherwise it would file an election case size limitations, as well as the inclusion of speech of private
against them. Thus, as per the Comelec’s Letter, prosecution individuals are issues capable of repetition, as elections are
of the offense would commence only if the petitioners held every three years.
continued posting the poster without complying with the size But while these issues are capable of repetition, they most
requirements. Had the petitioners complied with the size certainly cannot escape review. The administrative process
requirements for their poster, no election offense would have outlined in Comelec Resolution No. 9615 provides a process
been filed against them. through which the Comelec may decide these issues with
The petitioners, upon receipt of the letter, immediately finality. After the Comelec had been allowed to exercise its
filed a petition for certiorari before the Court the next jurisdiction to the fullest, judicial review of its actions may be
day. Five days later, they were granted a temporary availed of through a petition for certiorari under the Rules of
restraining order that forbade the Comelec from enforcing its Court. At that point, the issues would certainly no longer be
Notice and Letter. At this point, the Comelec had not yet premature.
implemented the warning it gave the petitioners in its Letter.
Thus, the temporary restraining order effectively prevented III. Substantive Arguments: Section 3.3 of RA 9006
the Comelec’s Letter from being enforced. At the time the TRO and Section 6(c) of Comelec Resolution No. 9615 are
prevented the enforcement of the Comelec’s Letter, the valid content-neutral regulations on election
petitioners could have still exercised the choice of complying propaganda
with the Comelec’s Notice and Letter, and hence avoided the
initiation of an election offense against them. This choice had Even assuming that the Court can give due course to the
never been exercised by the petitioners as the temporary present petition, I strongly disagree with the ponencia’s
restraining order forbade the Notice and Letter’s finding that the notices, as well as the regulations they
implementation, and effectively allowed them to continue enforce, are unconstitutional for violating the petitioners’
posting the subject posters without threat of prosecution. right to free speech.
In the meantime, the election period, during which the According to the ponencia, the Comelec’s attempt to
election offense of illegally posting election propaganda may enforce Comelec Resolution No. 9615 is a content-based
be committed and prosecuted, came to pass. Thus, our regulation that is heavily burdened with unconstitutionality.
decision in this case, and the consequent lifting of the Even assuming that the letter and notice contain a content-
temporary restraining order against the Comelec, could no neutral regulation, the ponenciaasserts that it still fails to
longer affect the rights of the petitioners. At this point in time, pass the intermediate test of constitutionality.
our ruling regarding the validity of the Comelec’s Notice and
Letter
The letter and notice sent by the Comelec’s legal (2) It was posted with another tarpaulin with the
department both sought to enforce the size restrictions on message “RH LAW IBASURA.”
election propagandaapplicable to the subject poster. The 152
151 152 SUPREME COURT REPORTS ANNOTATED
VOL. 747, JANUARY 21, 2015 151 The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections (3) Both tarpaulins were approximately six by ten feet in
Comelec advised the petitioners to comply with these size size, and were posted in front of the Cathedral within public
restrictions or take down the poster, or else it would be view.
compelled to file an election offense against him. Thereby, the (4) The subject poster contains the heading “conscience
Comelec recognized that it would not have any cause of action vote” and two lists of senators and members of the House of
or complaint if only the petitioners would comply with the size Representatives. The first list contains names of legislators
restriction. who voted against the passage of the Reproductive Health
The size restrictions are found in Comelec Resolution No. Law, denominated as Team Buhay. The second list contains
9615, which implements Section 3 of the Fair Elections names of legislators who voted for the RH Law’s passage,
Act. Section 3.3 of the Fair Elections Act and Section 6(c) of denominated as “Team Patay.” The “Team Buhay” list
Comelec Resolution No. 9615 mandate that posters contained a check mark, while the Team Patay list an X
containing election propaganda must not exceed an area of mark. All the legislators named in both lists were candidates
two by three feet. during the 2013 national elections.
Three queries must be resolved in determining the legality (5) It does not appear to have been sponsored or paid for by
of Comelec’s letter and notice: any candidate.
First, whether the subject poster falls within the election The content of the tarpaulin, as well as the timing of its
propaganda that may be regulated by the Comelec; posting, makes it subject of the regulations in RA 9006 and
Second, whether the size restrictions in Comelec Comelec Resolution No. 9615.
Resolution No. 9615 and RA 9006 impose content-neutral or Comelec Resolution No. 9615 contains rules and
content-based restrictions on speech; and regulations implementing RA 9006 during the 2013 national
Third, whether this regulation pass the appropriate test elections. Section 3 of RA 9006 and Section 6 of Comelec
of constitutionality. Resolution No. 9615 seek to regulate election propaganda,
defined in the latter as:
A. The subject poster falls within the regulated The term “political advertisement” or “election propaganda”
election propaganda in RA 9006 and Comelec refers to any matter broadcasted, published, printed,
Resolution No. 9615 displayed or exhibited, in any medium, which contain the
name, image, logo, brand, insignia, color motif, initials, and other
symbol or graphic representation that is capable of being
The subject poster carries the following characteristics:
associated with a candidate or party, and is intended to
(1) It was posted during the campaign period, by
draw the attention of the public or a segment thereof to
private individuals and within a private compound housing at promote or oppose, directly or indirectly, the election of the
the San Sebastian Cathedral of Bacolod. said candidate or candidates to a public office. In broadcast
media, political advertisements may
153 elective positions subject to the limitation on authorized expenses
VOL. 747, JANUARY 21, 2015 153 of candidates and political parties, observance of truth in adver-
The Diocese of Bacolod vs. Commission on Elections 154
154 SUPREME COURT REPORTS ANNOTATED
take the form of spots, appearances on TV shows and radio The Diocese of Bacolod vs. Commission on Elections
programs, live or taped announcements, teasers, and other forms of tising and to the supervision and regulation by the Commission
advertising messages or announcements used by commercial on Elections (COMELEC). x x x [Emphasis supplied]
advertisers.
Political advertising includes matters, not falling within the Further, lawful election propaganda under the Omnibus
scope of personal opinion, that appear on any Internet website, Election Code, which RA 9006 cites as part of its definition of
including, but not limited to, social networks, blogging sites, and what constitutes lawful propaganda, does not limit the
micro-blogging sites, in return for consideration, or otherwise materials enumerated therein to those posted by or in behalf
capable of pecuniary estimation. [Emphasis supplied]
of candidates.24Neither does the definition of what constitutes
an election offense limit the unlawful posting of election
Based on these definitions, the subject poster falls
propaganda to those posted by, or in behalf of candidates and
within the definition of election propaganda. It named
their parties.25
candidates for the 2013 elections, and was clearly intended
Thus, I find it clear that the law does not distinguish
to promote the election of a list of candidates it
between materials posted by or in behalf of candidates or by
favors and oppose the election of candidates in another
list. It was displayed in public view, and as such _______________
is capable of drawing the attention of the voting
public passing by the cathedral to its message. 24 Sec. 82. Lawful election propaganda.—Lawful election propaganda
shall include:
That the subject poster was posted by private individuals (a) Pamphlets, leaflets, cards, decals, stickers or other written or printed
does not take it away from the ambit of the definition. materials of a size not more than eight and one-half inches in width and
The definition found in Comelec Resolution No. fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or against any
9615 does not limit election propaganda to acts by or in
particular candidate;
behalf of candidates. (c) Cloth, paper or cardboard posters, whether framed or posted, with an
Neither does RA 9006 contain such restrictions: a look at area exceeding two feet by three feet, except that, at the site and on the
what constitutes lawful election propaganda in RA 9006 occasion of a public meeting or rally, or in announcing the holding of said
meeting or rally, streamers not exceeding three feet by eight feet in size, shall
also does not specify by whom or for whom the materials be allowed: Provided, That said streamers may not be displayed except one
are posted, viz.: week before the date of the meeting or rally and that it shall be removed within
Sec. 3. Lawful Election Propaganda.—Election propaganda seventy-two hours after said meeting or rally; or
whether on television, cable television, radio, newspapers or any (d) All other forms of election propaganda not prohibited by this Code as
other medium is hereby allowed for all registered political the Commission may authorize after due notice to all interested parties and
parties, national, regional, sectoral parties or hearing where all the interested parties were given an equal opportunity to be
heard: Provided, That the Commission’s authorization shall be published in
organizations participating under the party list elections two newspapers of general circulation throughout the nation for at least twice
and for all bona fide candidates seeking national and local within one week after the authorization has been granted.
25 Id.
155 _______________
VOL. 747, JANUARY 21, 2015 155
26 See Article XII of the Omnibus Election Code.
The Diocese of Bacolod vs. Commission on Elections 156
private individuals who have no political affiliation. When 156 SUPREME COURT REPORTS ANNOTATED
the law does not distinguish, neither should we. The Diocese of Bacolod vs. Commission on Elections
Had Congress intended to limit its definition of tion 17 of Comelec Resolution No. 9615 (both referring to
election propaganda to materials posted for or in campaign materials) that election propaganda are meant to
behalf of candidates, it could have so specified. Notably, apply only to political parties and candidates because the
Section 9 26 on the Posting of Campaign Materials indicates provisions on campaign materials only mention political
who the Comelec may authorize to erect common poster areas parties and candidates;27second, the focus of the definition of
for campaign materials in public places. It does not, as the term election propaganda hinges on whether it is
the ponencia makes it appear, limit the definition of election “designed to promote the election or defeat of a particular
propaganda to those posted by candidates and parties. candidate or candidates to a public office;”28 and third, the
The title of Section 9 uses the word “campaign subject poster falls within the scope of personal opinion that
materials” and not election propaganda; thus, it refers is not considered as political advertising under Section 1,
to a particular type of election propaganda. Election paragraph 429 of Comelec Resolution No. 9615.30
propaganda becomes a campaign material once it is To my mind, the first two arguments lead us to navigate
used by candidates and political parties. Nevertheless, the forbidden waters of judicial legislation. We cannot make
the latter is different from the more generic term distinctions when the law provides none — ubi lex non
‘election propaganda’ in the other parts of RA 9006.
distinguit, nec nos distinguere debemos.
As worded, Section 9 regulates the manner by which As I have earlier pointed out, the definition of election
candidates may post campaign materials, allowing them, propaganda is not limited to those posted by, or in behalf of
subject to the Comelec’s authorization, to erect common poster
areas in public places, and to post campaign materials in _______________
private property subject to its owner’s consent. It does not,
by any stretch of statutory construction, limit election 27 Draft ponencia, pp. 64-65.
28 Id., at p. 67.
propaganda to posts by parties and candidates. Notably, 29 The term “political advertisement” or “election propaganda” refers to
the word “campaign material” appears only once in RA 9006, any matter broadcasted, published, printed, displayed or exhibited, in any
signifying its limited application to Section 9, and that it medium, which contain the name, image, logo, brand, insignia, color motif,
initials, and other symbol or graphic representation that is capable of being
should not be interchanged with the term “election
associated with a candidate or party, and is intended to draw the attention of
propaganda” appearing in other parts of the law. the public or a segment thereof to promote or oppose, directly or indirectly, the
In these lights, I disagree with the ponencia’s insistence election of the said candidate or candidates to a public office. In broadcast
that the Comelec had no legal basis to regulate the subject media, political advertisements may take the form of spots, appearances on
TV shows and radio programs, live or taped announcements, teasers, and
posters, as these are expressions made by private individuals. other forms of advertising messages or announcements used by commercial
To support this conclusion, the ponencia pointed out advertisers.
that first, it may be inferred from Section 9 of RA 9006 and Political advertising includes matters, not falling within the scope of
Sec- personal opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites, in return Further, if we were to follow the ponencia’s logic, and
for consideration, or otherwise capable of pecuniary estimation. (Emphasis
proclaim a personal opinion by a private individual meant to
supplied)
30 Draft ponencia, p. 87. influence the public as regards their vote an exemption to the
157 election propaganda definition, then it would render the
VOL. 747, JANUARY 21, 2015 157 entire definition useless. Since Comelec Resolution No. 9615
The Diocese of Bacolod vs. Commission on Elections does not limit personal opinions to private individuals, then it
candidates. Further, campaign materials are different 158
from election propaganda — the former refers to election 158 SUPREME COURT REPORTS ANNOTATED
propaganda used by candidates and political parties, and The Diocese of Bacolod vs. Commission on Elections
hence it is understandable that it would only mention applies with equal force to candidates, who necessarily
candidates and political parties. have a personal opinion that they should get elected, and
Indeed, the definition of election propaganda focuses on would not pay themselves to utter these opinions. I dare say
the impact of the message, i.e., that it is intended to promote that such an absurd situation, where an exception nullifies
or dissuade the election of candidates, and not for whom or by the general provision, had not been the intent of Comelec
whom it is posted. This nuance in the definition recognizes Resolution No. 9615.
that the act of posting election propaganda can be performed Additionally, the definition of election propaganda under
by anyone, regardless of whether he is a candidate or private RA 9006 has no mention of personal opinions, and in case of
individual. It does not serve to limit the definition of election inconsistency (which to me does not exist in the present case)
propaganda to materials posted by candidates. between a law and a regulation implementing it, the law
At this point, I find it worthy to emphasize that our first should prevail.
and primary task is to apply and interpret the law as Worthy of note, lastly, is that the commingling of the
written, and not as how we believe it should be. subject poster’s content with a public issue in another poster
With respect to the third argument, personal opinions are does not exempt the former from regulation as an election
of course not included within the definition of election propaganda. The definition of election propaganda necessarily
propaganda. But when these opinions on public issues includes issues that candidates support, because these issues
comingle with persuading or dissuading the public to elect can persuade or dissuade voters to vote for them. To be sure,
candidates, then these opinions become election propaganda. it is a very shortsighted view to claim that propaganda only
Notably, the exclusion of personal opinions in the definition relates to candidates, not to the issues they espouse or oppose.
of political advertisements refers to matters that are printed The present case reached this Court because the
in social media for pecuniary consideration. The entire petitioners, who apparently are bent on carrying their
provision was meant to cover the phenomenon of paid blogs Reproductive Health (RH) message to the people, and as a
and advertisements in the Internet, without including in its means, rode on to the then raging electoral fight by identifying
scope personal opinions of netizens. I do not think it can be candidates supporting and opposing the RH. While indeed
extended to election propaganda, as exceptions usually the RH issue, by itself, is not an electoral matter, the slant
qualify the phrase nearest to it — in this case, it was meant that the petitioners gave the issue converted the nonelection
to qualify matters appearing in the Internet. issue into a live election one hence, Team Buhay and Team
Patay and the plea to support one and oppose the other.
From this perspective, I find it beyond question that the In contrast, content-neutral regulations are not
poster containing the message “RH LAW IBASURA” was an presumed unconstitutional. They pass constitutional
election propaganda, and should thus comply with the size muster once they meet the following requirements: first, that
limitations. To stress, the subject poster and its Team Buhay the regulation is within the constitutional power of the
and Team Patay message advocated support or opposition to Govern-
specific candidates based on their respective RH stand and
_______________
thus cannot but fall within the coverage of what constitutes
as election propaganda. 31 Newsounds Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 &
159 179411, April 2, 2009, 583 SCRA 333.
VOL. 747, JANUARY 21, 2015 159 32 Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, 545 SCRA
The Diocese of Bacolod vs. Commission on Elections 441, 493.
33 Id.
Lastly, that the subject poster was posted on private 160
property does not divest the Comelec of authority to regulate 160 SUPREME COURT REPORTS ANNOTATED
it. The law specifically recognizes the posting of election The Diocese of Bacolod vs. Commission on Elections
propaganda on private property provided its owner consents ment; second, that it furthers an important or substantial
to it. In the present case, the property owner is the Diocese of governmental interest; third, that the governmental interest
Bacolod itself, and the posting of the subject poster was made is unrelated to the suppression of free expression; and fourth,
upon its own directive. that the incidental restriction on speech is no greater than is
essential to further that interest.34
B. The notice and letter enforce a content-neutral The assailed regulations in the present case involve
regulation a content-neutral regulation that controls the incidents
of speech. Both the notice and letter sent by the Comelec to
Philippine jurisprudence distinguishes between the the Diocese of Bacolod sought to enforce Section 3.3 of RA
regulation of speech that is content-based, from regulation 9006 and Section 6(c) of Comelec Resolution No. 9615 which
that is content-neutral. Content-based regulations regulate
limits the size of posters that contain election propaganda to
speech because of the substance of the message it conveys.31 In not more than two by three feet. It does not prohibit anyone
contrast, content-neutral regulations are merely concerned from posting materials that contain election propaganda, so
with the incidents of speech: the time, place or manner of the long as it meets the size limitations.
speech’s utterance under well-defined standards.32 Limitations on the size of a poster involve a content-
Distinguishing the nature of the regulation is crucial in neutral regulation involving the manner by which
cases involving freedom of speech, as it determines the test speech may be uttered. It regulates how the speech shall be
the Court shall apply in determining its validity. uttered, and does not, in any manner affect or target the
Content-based regulations are viewed with a heavy actual content of the message.
presumption of unconstitutionality. Thus, the government
That the size of a poster or billboard involves a time,
has the burden of showing that the regulation is narrowly manner and place regulation is not without judicial
tailored to meet a compelling state interest, otherwise, the precedent, albeit in the US jurisdiction where our Bill of
Court will strike it down as unconstitutional.33
Rights and most of our constitutional tests involving the
exercise of fundamental rights first took root. Several convey any message regardless of its size (unless, of course,
cases35 decided by the US vacuity itself is the message being conveyed). In the same
manner, a sound or utterance, without words or tunes spoken
_______________
or played, cannot be considered a message regardless of its
34 Social Weather Stations, Inc. v. Commission on Elections, G.R. No. volume. We communicate with each other by symbols —
147571, May 5, 2001, 357 SCRA 496. written, verbal or illustrated — and these communications
35 Members of the City Council of the City of Los Angeles v. Taxpayers for are what the freedom of speech protects, not the manner by
Vincent, 466 U.S. 789; 104 S. Ct. 2118; 80 L. Ed. 2d 772; 1984; Baldwin v.
which these symbols are conveyed.
Redwood City, 540 F.2d 1360; 1976 U.S. App. LEXIS 7659; Baldwin v.
Redwood City, 540 F.2d 1360, 1368-1369 (CA9 1976), cert. denied sub Neither is the ponencia’s contention that larger spaces
nom. Leipzig v. Baldwin, 431 U.S. 913 (1977); Temple Baptist Church, Inc. v. allow for more messages persuade to treat the size limitation
City of Albuquerque, 98 N. M. 138, 146, 646 P. 2d 565, 573 (1982); Krych v. as a content-based regulation — persuasive. RA 9006 and
Village of Burr Ridge, 111 Ill. App. 3d 461, 464-466, 444 N.E. 2d 229, 232-233
Come-
(1982); Regan v. Time, 468 U.S. 641; 104 S. Ct. 3262; 82 L. Ed. 2d 487; 1984
U.S. LEXIS 147; 52 U.S.L.W. 5084.
_______________
161
VOL. 747, JANUARY 21, 2015 161 36 See Regan v. Time, id., citing Kovacs v. Cooper, 336 U.S. 77 (1949).
The Diocese of Bacolod vs. Commission on Elections 162
Supreme Court treated size restrictions in posters as a 162 SUPREME COURT REPORTS ANNOTATED
content-neutral regulation, and consequently upheld their The Diocese of Bacolod vs. Commission on Elections
validity upon a showing of their relationship to a substantial lec Resolution No. 9615 do not limit the number of posters
government interest. that may be posted; only their size is regulated. Thus, the
Admittedly, the size of the poster impacts on the number of messages that a private person may convey is not
effectiveness of the communication and the gravity of its limited by restrictions on poster size.
message. Although size may be considered a part of Additionally, I cannot agree with the ponencia’s assertion
the message, this is an aspect that merely highlights the that the assailed regulation is content-based because it only
content of the message. It is an incident of speech that applies to speech connected to the elections, and does not
government can regulate, provided it meets the regulate other types of speech, such as commercial speech.37
requirements for content-neutral regulations. I am sure there are cases in the United States that
That the incidents of speech are restricted through recognize that a difference in treatment of speech based on the
government regulation do not automatically taint them content of the message involves a content-based regulation.
because they do not restrict the message the poster itself These cases, however, involve a single law providing either a
carries. Again, for emphasis, Comelec Resolution No. 9615 preferential or prejudicial treatment on certain types of
and RA 9006 regulate how the message shall be transmitted, messages over other messages.38 In contrast, the assailed
and not the contents of the message itself. regulation covers only election propaganda (without regard to
The message in the subject poster is transmitted through the actual message), and applies only during the election
the text and symbols that it contains. We can, by analogy, period.
compare the size of the poster to the volume of the sound of a Further, this kind of assertion, if followed, would amount
message.36 A blank poster, for instance and as a rule, does not to the declaration that the entire RA 9006 is a content-based
regulation of speech, because it only regulates speech related manner regulation, then it may be the proper subject of a
to the elections. On the flipside, this kind of assertion would government regulation.
render time, manner and place regulations on commercial That Congress may impose regulations on the time place,
speech as content-based regulations because they regulate and manner of speech during the election period is even
only speech pertaining to commerce and not others. I find implicitly recognized in Section 2, paragraph 7, Article IX-C
these resulting situations to be absurd as, in effect, they of the 1987 Constitution. Under this provision, the Comelec is
eradicate the jurisprudential distinction between content- empowered to recommend to Congress effective measures to
based and content-neutral regulations. minimize election spending, including limitation of places
The more reasonable approach, to my mind, is to examine where propaganda materials shall be posted. That Congress
the regulation based on what it has intended to regulate, i.e., can pass regulations regarding places where propaganda
the resulting impact of the regulation. In the present case, the materials may be posted necessarily indicates that it can also
assailed regulation results into restricting the size of posters pass other content-neutral regulations, such as the time and
containing election propaganda, which, as I have explained manner of the speech’s utterance.
above, is a content-neutral regulation. In considering the matter before us, it should not be lost to
us that we are examining actions implementing election
_______________
laws. Both interests — freedom of speech and honest, fair and
37 Draft ponencia, p. 72. or-
38 See, for instance, City of Ladue v. Gilleo, 512 U.S. 43. 164
163 164 SUPREME COURT REPORTS ANNOTATED
VOL. 747, JANUARY 21, 2015 163 The Diocese of Bacolod vs. Commission on Elections
The Diocese of Bacolod vs. Commission on Elections derly elections — have been specifically recognized, in our
C. Comelec Resolution No. 9615 passes the Constitution39 and in the jurisprudence applying them,40 as
intermediate scrutiny test for content-neutral important constitutional values. If speech enjoys preference
regulation for the individual in the hierarchy of rights, election
regulations likewise have their preferred status in the
Applying the test for the intermediate test to Section 3.3 of hierarchy of governmental interests and have no less
RA 9006 and Section 6(c) of Comelec Resolution No. 9615, I basis than the freedom of speech.41
find that the size limitation on posters does not offend the
_______________
Constitution.
39 Consider the following constitutional provisions on free speech and the
1. The size limitation for posters containing election holding of free, orderly elections that provide equal opportunity for all its
propaganda in Section 6(c) of Comelec Resolution No. candidates:
Article II, Section 26 of the 1987 Constitution provides:
9615 and Section 3.3 of RA 9006 is within the
Section 26. The State shall guarantee equal access to opportunities for
constitutional power of the Government public service and prohibit political dynasties as may be defined by law.
Philippine jurisprudence has long settled that the time, Article III, Section 4 of the 1987 Constitution provides:
place, and manner of speech may be subject to Government Section 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
regulation. Since the size of a poster involves a time, place and and petition the government for redress of grievances.
Article IX-C, Section 4 of the 1987 Constitution provides: guarantee equal access to opportunities for public service and prohibit political
Section 4. The Commission may, during the election period, supervise dynasties as may be defined by law.”
or regulate the enjoyment or utilization of all franchises or permits for the The technical effect of Article IX(C)(4) of the Constitution may be seen to
operation of transportation and other public utilities, media of communication be that no presumption of invalidity arises in respect of exercises of
or information, all grants, special privileges, or concessions granted by the supervisory or regulatory authority on the part of the Comelec for the purpose
Government or any subdivision, agency, or instrumentality thereof, including of securing equal opportunity among candidates for political office, although
any government-owned or -controlled corporation or its subsidiary. Such such supervision or regulation may result in some limitation of the rights of
supervision or regulation shall aim to ensure equal opportunity, time, and free speech and free press. For supervision or regulation of the operations of
space, and the right to reply, including reasonable, equal rates therefor, for media enterprises is scarcely conceivable without such accompanying
public information campaigns and forums among candidates in connection limitation. Thus, the applicable rule is the general, time-honored one — that
with the objective of holding free, orderly, honest, peaceful, and credible a statute is presumed to be constitutional and that the party asserting its
elections. unconstitutionality must discharge the burden of clearly and convincingly
40 See, for instance, National Press Club v. Commission on Elections, G.R. proving that assertion.
No. 102653, March 5, 1992, 207 SCRA 1; Osmeña v. Commission on Elections, 166
G.R. No. 132231, March 31, 1998, 288 SCRA 447; SWS v. Commission on 166 SUPREME COURT REPORTS ANNOTATED
Elections, supranote 34.
41 In National Press Club v. Commission on Elections, id., the Court thus The Diocese of Bacolod vs. Commission on Elections
said: To justify its imposition of size restrictions on posters
165 containing election propaganda, the Comelec invokes its
VOL. 747, JANUARY 21, 2015 165 constitutional mandate to ensure equal opportunity for public
The Diocese of Bacolod vs. Commission on Elections information campaigns among candidates, to ensure orderly
2. The size limitation for posters containing election elections and to recommend effective measures to minimize
propaganda furthers an important and substantial election spending.
governmental interest These, to me, are substantial government interests
sufficient to justify the content-neutral regulation on the size
_______________
of the subject poster. Their inclusion in the Constitution
It seems a modest proposition that the provision of the Bill of Rights which signifies that they are important. We have, in several cases,
enshrines freedom of speech, freedom of expression and freedom of the press upheld the validity of regulations on speech because of these
(Article III[4], Constitution) has to be taken in conjunction with Article state interests.42
IX(C)(4) which may be seen to be a special provision applicable during a
Further, the limitation on the size of posters serves these
specific limited period — i.e., “during the election period.” It is difficult to
overemphasize the special importance of the rights of freedom of speech and interests: a cap on the size of a poster ensures, to some extent,
freedom of the press in a democratic polity, in particular when they relate to uniformity in the medium through which information on
the purity and integrity of the electoral process itself, the process by which the candidates may be conveyed to the public. It effectively bars
people identify those who shall have governance over them. Thus, it is
frequently said that these rights are accorded a preferred status in our
candidates, supporters or detractors from using posters too
constitutional hierarchy. Withal, the rights of free speech and free press are large that they result in skewed attention from the
not unlimited rights for they are not the only important and relevant values public. The limitation also prevents the candidates and their
even in the most democratic of polities. In our own society, equality of supporting parties from engaging in a battle of sizes (of
opportunity to proffer oneself for public office, without regard to the level of
financial resources that one may have at one’s disposal, is clearly an important
posters) and, in this sense, serve to minimize election
value. One of the basic state policies given constitutional rank by Article II, spending and contribute to the maintenance of peace and
Section 26 of the Constitution is the egalitarian demand that “the State shall order during the election period.
The ponencia dismissed the government interests the distinction on testing the validity of a speech
Comelec cites for not being compelling enough to justify a regulation, something that I find no cogent reason to
restriction on protected speech. According to the ponencia, a disturb.
compelling state interest is necessary to justify the Neither can I agree with the ponencia’s use of Adiong v.
governmental action because it affects constitutionally- Comelec44 as authority for holding that ensuring equality
declared principles, i.e., freedom of speech.43 between candidates is less important than guaranteeing the
First of all, the ponencia has mixed and lumped together freedom of expression.45 This pronouncement is within the
the test for the constitutionality of a content-based regulation context of characterizing the prohibition of stickers and decals
with that of a content-neutral regulation. to private places as a form of unjustified censorship. In
contrast, the regulation in question does not prohibit anyone
_______________
from posting any election propaganda, but only to regulate its
42 See, for instance, National Press Club v. Comelec, id., Osmeña v. size. Notably, the weighing of constitutional values applies on
Comelec, supra note 40. a case-to-case basis; we have, in the past, decided cases where
43 Draft ponencia, pp. 96-97.
167 _______________
VOL. 747, JANUARY 21, 2015 167
44 G.R. No. 103956, March 31, 1992, 207 SCRA 712.
The Diocese of Bacolod vs. Commission on Elections 45 Draft ponencia, p. 97.
A compelling state interest is a requirement for the 168
constitutionality of a content-based regulation. 168 SUPREME COURT REPORTS ANNOTATED
The ponenciaimposes this requirement as an addition to the The Diocese of Bacolod vs. Commission on Elections
intermediate test for content-neutral regulations, while at the the regulation of speech is allowed to ensure equal access
same time applying this modified intermediate test to a to public service.
regulation that it has described as content-based. The test to I note, too that ensuring equality between candidates is not
determine the constitutionality of a content-based regulation the only goal achieved in regulating the size of election posters
is different, and in fact requires a higher standard, from the — it is also meant to enforce the constitutional goals of
test to determine a content-neutral regulation’s validity. The minimizing election spending, and ensuring orderly elections.
requirements for the compelling state interest test should not Lastly, I cannot agree with the ponencia’s contention that
be confused with the requirements for the intermediate test, the Comelec’s interest and regulatory authority in the posting
and vice versa. of election propaganda is limited to postings in public places.
If we were to require a compelling state interest in The regulatory framework of RA 9006 is not limited to election
content-neutral regulations, we, in effect, would propaganda in public places, and in fact recognizes that they
be transforming the intermediate test to a strict may be posted in private property, subject to their owners’
scrutiny test, and applying it to both content-based consent.
and content-neutral regulations, as both regulations Further, the pronouncement in Adiong, where the Court
involve a constitutional principle (i.e., the content of held that the regulation prohibiting the posting of decals and
speech and the manner of speech). In other words, we stickers in private property violates the property owners’
would be eradicating a crucial jurisprudential right to property, does not apply in the presently assailed
regulation, because the latter does not prohibit the posting of The government’s interest in limiting the size of posters
posters but merely regulates its size. containing election propaganda does add to or restrict the
The ponencia’s legal conclusion also contravenes settled freedom of expression. Its interests in equalizing opportunity
doctrine regarding the government’s capacity to regulate the for public information campaigns among candidates,
incidents of speech, i.e., its time, place and manner of minimizing election spending, and ensuring orderly elections
utterance. Notably, paragraph 7, Section 2, Article IX-C of the do not relate to the suppression of free expression.
1987 Constitution — one of the provisions the Comelec Freedom of expression, in the first place, is not the god of
invokes to justify its regulation — specifically recognizes that rights to which all other rights and even government
the Congress may regulate the places of posting election protection of state interest must bow. Speech rights are not
propaganda. This provision, like RA 9006, does not limit the the only important and relevant values even in the most
generic term ‘place,’ and thus applies to both public and democratic societies. Our Constitution, for instance, values
private property. giving equal opportunity to proffer oneself for public office,
Justice Estela M. Perlas-Bernabe, on the other hand, without regard to a person’s status, or the level of financial
argues that there is no substantial state interest in restricting resources that one may have at one’s disposal.48
the posters’ size, because like the posting of decals and
_______________
stickers in Adiong,46 it does not endanger any substantial
govern- 47 Justice Estela M. Perlas-Bernabe’s Concurring Opinion, p. 173.
48 See National Press Club v. COMELEC, supra note 40.
_______________ 170
170 SUPREME COURT REPORTS ANNOTATED
46 Supra note 44.
169 The Diocese of Bacolod vs. Commission on Elections
VOL. 747, JANUARY 21, 2015 169 On deeper consideration, elections act as one of the means
The Diocese of Bacolod vs. Commission on Elections by which the freedom of expression and other guaranteed
ment interest and at the same time restricts the speech of individual rights are protected, as they ensure that our
individuals on a social issue.47 democratic and republican ideals of government are fulfilled.
It must be stressed, however, that unlike in Adiong, which To put it more bluntly, unless there are clean, honest and
prohibited the posting of decals and stickers in private places, orderly elections that give equal opportunities and free choice
the assailed regulation in the present case does not prohibit to all, the freedoms guaranteed to individuals may become a
the posting of election propaganda, but merely requires that joke, a piece of writing held in reverence only when it suits the
it comply with size requirements. These size requirements needs or fancy of officials elected in tainted elections.
promote government interests enumerated in the
Constitution, and its nonregulation would hinder them. 4. The incidental restriction on speech is no greater
than is essential to further that interest
3. The governmental interest in limiting the size of
posterscontaining election propaganda is unrelated to Indeed, the restriction on the poster’s size affects the
the suppression of free expression manner by which the speech may be uttered, but this
restriction is no greater than necessary to further the example, condominium owners in the 30th floor, should they
government’s claimed interests. be adamant in posting their message in the said floor, can post
Size limits to posters are necessary to ensure equality of more than one poster to make their message readable.
public information campaigns among candidates, as allowing Too, they can still post their message in other areas where
posters with different sizes gives candidates and their their message may be read. It may be argued, at this point,
supporters the incentive to post larger posters. This places that this would amount to an indirect regulation of the place
candidates with more money and/or with deep-pocket where posters may be posted. It must be remembered,
supporters at an undue advantage against candidates with however, that the place of posting involves a content-neutral
more humble financial capabilities. regulation that the Comelec is authorized to implement, and
Notably, the law does not limit the number of posters that that in any case, there is no explicit limitation as to where the
a candidate, his supporter, or a private individual may posters may be posted. They may still be posted anywhere,
post. If the size of posters becomes unlimited as well, then subject only to the size requirements for election propaganda.
candidates and parties with bigger campaign funds could 172
effectively crowd out public information on candidates with 172 SUPREME COURT REPORTS ANNOTATED
less money to spend to secure posters — the former’s bigger The Diocese of Bacolod vs. Commission on Elections
posters and sheer number could effectively take the attention
away from the latter’s message. In the same manner, a lack SEPARATE CONCURRING OPINION
of size limitations would also crowd out private, unaffiliated
individuals from participating in the discussion through post- PERLAS-BERNABE, J.:
171
VOL. 747, JANUARY 21, 2015 171 I concur with the ponencia that the COMELEC’s Notice to
The Diocese of Bacolod vs. Commission on Elections Remove Campaign Materials dated February 22, 2013 and
ers, or at the very least, compel them to erect bigger posters Letter dated February 27, 2013 (the COMELEC issuances)
and thus spend more. ordering the immediate removal of the tarpaulin subject of
Prohibiting size restrictions on posters is also related to this case are null and void for being unreasonable restrictions
election spending, as it would allow candidates and their on free speech. I, however, disagree in the approach
supporters to post as many and as large posters as their the ponencia takes in decreeing the same. This stems from my
pockets could afford. view that the said COMELEC issuances constitute
In these lights, I cannot agree with Justice Antonio T. content-neutral and not content-based regulations as
Carpio’s argument that the size restriction on posters restricts the ponencia so holds, reasoning that “the content of the
speech greater than what is necessary to achieve the state’s tarpaulin is not easily divorced from the size of its
interests. The restriction covers only the size of the posters, medium.”1 In this regard, I agree with the opinion of Senior
and not the message it contains. If posting a longer message Associate Justice Antonio T. Carpio that these issuances,
or its readability is the issue, then it must be pointed out that which effectively limit the size of the tarpaulin, are
nothing in RA 9006 or Comelec Resolution No. 9615 prevents examples of content-neutral regulations as they
the posting of more than one poster containing the longer restrict only the manner by which speech is relayed
message in one site. Applying this to Justice Carpio’s but not the content of what is conveyed.2 I find this to be
true since no peculiar reason was proffered by the petitioners by the ponencia as content-neutral, and not content-based
behind the sizing of their poster — say, to put emphasis on a regulations. As I see it, the medium here is not the message.
particular portion of the text or to deliberately serve as some On the premise that the COMELEC issuances constitute
sort of symbolic allusion. The tarpaulin’s size links, as it content-neutral regulations, the method of constitutional
appears, only to the efficiency of the communication, following scrutiny which should be applied would then be the
the logic that a larger size makes them more visible. This, to intermediate scrutiny test, and not the strict scrutiny test
my mind, merely concerns the manner by which the speech is which the ponencia necessarily utilized due to its content-
communicated, and not its content. In the same vein, it is my based classification.
observation that sensible use of time and place (both of which As comprehensively explained in the seminal case
are generally recognized as incidents of speech, akin to how I of Chavez v. Gonzales,5 “[w]hen the speech restraints take the
perceive the poster’s size) may also affect the efficiency of form of a content-neutral regulation, only a substantial
communication: perceptibly, a governmental interest is required for its validity. Because
regulations of this type are not designed to suppress any par-
_______________
_______________
1 See ponencia, p. 93.
2 See Separate Concurring Opinion of Senior Associate Justice Antonio T. 3 602 Phil. 255; 583 SCRA 333 (2009).
Carpio, p. 128. 4 Id., at p. 271; p. 352.
173 5 569 Phil. 155; 545 SCRA 441 (2008).
VOL. 747, JANUARY 21, 2015 173 174
The Diocese of Bacolod vs. Commission on Elections 174 SUPREME COURT REPORTS ANNOTATED
message conveyed at a time and place where people are The Diocese of Bacolod vs. Commission on Elections
most likely to view the same may have the effect of making ticular message, they are not subject to the strictest form
the communication more “efficient.” The distinction between of judicial scrutiny but an intermediate approach —
a content-neutral regulation and a content-based regulation, somewhere between the mere rationality that is required of
as enunciated in the case of Newsounds Broadcasting any other law and the compelling interest standard applied to
Network, Inc. v. Hon. Dy,3 is as follows: content-based restrictions. The test is
[J]urisprudence distinguishes between a content- called intermediate because the Court will not merely
neutral regulation, i.e., merely concerned with the incidents of rubberstamp the validity of a law but also require that the
the speech, or one that merely controls the time, place or restrictions be narrowly-tailored to promote an important or
manner, and under well-defined standards; and a content- significant governmental interest that is unrelated to the
based restraint or censorship, i.e., the restriction is based on
suppression of expression. The intermediate approach has
the subject matter of the utterance or speech.4
[thus] been formulated in this manner: A governmental
x x x x (Emphases supplied)
regulation is sufficiently justified if it is within the
constitutional power of the Government, if [(a)] it furthers
Since the sizing regulations, i.e., the COMELEC issuances,
an important or substantial governmental
are concerned only with an incident of speech, that is, the
interest; [(b)]the governmental interest is unrelated to the
manner by which the speech was communicated, I thus
suppression of free expression; and [(c)] the incident
respectfully submit that they should have been characterized
restriction on alleged [freedom of speech and expression] is no prohibition is not so much that of the candidate or the
greater than is essential to the furtherance of that interest.”6 political party.”10 The Court rationalized that:
“On the other hand, a governmental action that restricts The regulation strikes at the freedom of an individual to express
freedom of speech or of the press based on content is given his preference and, by displaying it on his car, to convince others to
the strictest scrutiny in light of its inherent and invasive agree with him. A sticker may be furnished by a candidate but once
impact. Only when the challenged act has overcome the clear the car owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his
and present danger rule will it pass constitutional muster,
own and not of anybody else. If, in the National Press Club [v.
with the government having the burden of overcoming the
Comelec] case [G.R. No. 102653, March 5, 1992, 207 SCRA 1], the
presumed unconstitutionality.”7 Court was careful to rule out restrictions on reporting by
Given the peculiar circumstances of this case, it is my view newspapers or radio and television stations and commentators or
that the COMELEC issuances do not advance an important columnists as long as these are not correctly paid-for
or substantial governmental interest so as to warrant the advertisements or purchased opinions[,] with less reason can we
restriction of free speech. The subject tarpaulin cannot be sanction the prohibition against a sincere manifestation of
classified as the usual election propaganda directly endorsing support and a proclamation of belief by an individual
a particular candidate’s campaign. Albeit with the incidental person
effect of manifesting candidate approval/disapproval, the
_______________
_______________
8 Entitled “An Act Providing for a National Policy on Responsible
Parenthood and Reproductive Health” (December 21, 2012).
6 Id., at pp. 205-206; pp. 493-494. (emphases and underscoring supplied)
9 G.R. No. 103956, March 31, 1992, 207 SCRA 712.
7 Id., at p. 206; p. 494. (emphases in the original)
10 Id., at p. 719.
175
176
VOL. 747, JANUARY 21, 2015 175 176 SUPREME COURT REPORTS ANNOTATED
The Diocese of Bacolod vs. Commission on Elections The Diocese of Bacolod vs. Commission on Elections
subject tarpaulin, at its core, really asserts a private
entity’s, i.e., the Diocese’s, personal advocacy on a social who pastes a sticker or decal on his private
issue, i.e., reproductive health, in relation to the passage of property.11 (Emphases supplied)
Republic Act No. 10354,8otherwise known as the “Responsible
Parenthood and Reproductive Health Act of 2012.” What is Considering the totality of the factors herein detailed, and
more is that the tarpaulin, although open to the public’s view, equally bearing in mind the discussions made in Adiong, I
was posted in purely private property by the Diocese’s own submit that the COMELEC issuances subject of this case do
volition and without the prodding or instruction of any not satisfy the substantial governmental interest requisite
candidate. In Blo Umpar Adiong v. COMELEC (Adiong),9 the and, hence, fail the intermediate scrutiny test. Surely, while
Court nullified the prohibition on the posting of decals and the COMELEC’s regulatory powers ought to be recognized,
stickers in “mobile” places like cars and other moving vehicles personal advocacies pertaining to relevant social issues by a
as the restriction did not endanger any substantial private entity within its own private property ought to fall
government interest, observing, among others, that “the beyond that broad authority, lest we stifle the value of a core
freedom of expression curtailed by the questioned liberty.
ACCORDINGLY, subject to the above stated reasons, I Constitution, that issuance is null and void and has no effect. The
concur with the ponencia and vote to GRANT the petition. Constitution is the basic law to which all laws must conform; no act
Petition granted, temporary restraining order made shall be valid if it conflicts with the Constitution.—Like any other
permanent. administrative regulations, Resolution No. 9615, or any part
thereof, must not run counter to the Constitution. It is basic that if
Notes.—Freedom of expression constitutes one of the
a law or an administrative rule violates any norm of the
essential foundations of a democratic society, and this
Constitution, that issuance is null and void and has no effect. The
freedom applies not only to those that are favorably received Constitution is the basic law to which all laws must conform; no act
but also to those that offend, shock or disturb. (Ang Ladlad shall be valid if it conflicts with the Constitution. In this regard, an
LGBT Party vs. Commission on Elections, 618 SCRA 32 administrative regulation, even if it purports to advance a
[2010]) legitimate governmental interest, may not be permitted to run
The established policy of strict observance of the judicial roughshod over the cherished rights of the people enshrined in the
hierarchy of courts, as a rule, requires that recourse must first Constitution.
be made to the lower-ranked court exercising concurrent Same; Freedom of Speech and of Expression; Prior Restraint;
jurisdiction with a higher court. (Dio vs. Subic Bay Marine Freedom from prior restraint is largely freedom from government
Exploratorium, Inc., 726 SCRA 244 [2014]) censorship of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive, legislative or
——o0o——
judicial branch of the government.—Free speech may be identified
_______________ with the liberty to discuss publicly and truthfully any matter of
public concern without prior restraint or censorship and subsequent
11 Id. punishment. Prior restraint refers to official governmental
restrictions on the press or other forms of expression in advance of
© Copyright 2018 Central Book Supply, Inc. All rights reserved. actual publication or dissemination. Freedom from prior restraint
is largely freedom from government censorship of publications,
whatever the form of censorship, and regardless of whether it is
wielded by the executive, legislative or judicial branch of the
government. Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its validity. Section
7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615 unduly infringe on the fundamental right of the people to
freedom of speech. Central to
_______________

* EN BANC.
442
G.R. No. 206020. April 14, 2015.* 442 SUPREME COURT REPORTS ANNOTATED
1-United Transport Koalisyon (1-UTAK) vs. Commission on
1-UNITED TRANSPORT KOALISYON (1-UTAK), Elections
petitioner, vs.COMMISSION ON ELECTIONS, respondent.
the prohibition is the freedom of individuals, i.e., the owners of
Constitutional Law; Administrative Regulations; Statutes; It is
PUVs and private transport terminals, to express their preference,
basic that if a law or an administrative rule violates any norm of the
through the posting of election campaign material in their property, 1-United Transport Koalisyon (1-UTAK) vs. Commission on
and convince others to agree with them. Elections
Same; Same; It is now deeply embedded in our jurisprudence previously set out the limitations thereon. In Adiong v.
that freedom of speech and of the press enjoys a preferred status in COMELEC, 207 SCRA 712 (1992), the Court, while recognizing
our hierarchy of rights.—It is now deeply embedded in our that the COMELEC has supervisory power vis-à-vis the conduct
jurisprudence that freedom of speech and of the press enjoys a and manner of elections under Section 4, Article IX-C of the
preferred status in our hierarchy of rights. The rationale is that the Constitution, nevertheless held that such supervisory power does
preservation of other rights depends on how well we protect our not extend to the very freedom of an individual to express his
freedom of speech and of the press. It has been our constant holding preference of candidates in an election by placing election campaign
that this preferred freedom calls all the more for utmost respect stickers on his vehicle.
when what may be curtailed is the dissemination of information to Same; Same; Delegation of Powers; The Commission on
make more meaningful the equally vital right of suffrage. Elections’ (COMELEC’s) constitutionally delegated powers of
Same; Same; Content-Neutral Regulation; A content-neutral supervision and regulation do not extend to the ownership per se of
regulation, i.e., which is merely concerned with the incidents of the public utility vehicles (PUVs) and transport terminals, but only to
speech, or one that merely controls the time, place or manner, and the franchise or permit to operate the same.—In the instant case, the
under well-defined standards, is constitutionally permissible, even Court further delineates the constitutional grant of supervisory and
if it restricts the right to free speech.—A content-neutral regulatory powers to the COMELEC during an election period. As
regulation, i.e., which is merely concerned with the incidents of the worded, Section 4, Article IX-C of the Constitution only grants
speech, or one that merely controls the time, place or manner, and COMELEC supervisory and regulatory powers over the enjoyment
under well-defined standards, is constitutionally permissible, even or utilization “of all franchises or permits for the operation,” inter
if it restricts the right to free speech, provided that the following alia, of transportation and other public utilities. The COMELEC’s
requisites concur: first, the government regulation is within the constitutionally delegated powers of supervision and regulation do
constitutional power of the Government; second, it furthers an not extend to the ownership per se of PUVs and transport
important or substantial governmental interest; third, the terminals, but only to the franchise or permit to operate the same.
governmental interest is unrelated to the suppression of free There is a marked difference between the franchise or permit to
expression; and fourth, the incidental restriction on freedom of operate transportation for the use of the public and the
expression is no greater than is essential to the furtherance of that ownership per se of the vehicles used for public transport.
interest. Constitutional Law; Freedom of Speech and of Expression;
Election Law; Commission on Elections; The constitutional Prior Restraint; Regulating the expression of ideas or opinion in a
grant of supervisory and regulatory powers to the Commission on public utility vehicle (PUV), through the posting of an election
Elections (COMELEC) over franchises and permits to operate, campaign material thereon, is not a regulation of the franchise or
though seemingly unrestrained, has its limits.—The constitutional permit to operate, but a regulation on the very ownership of the
grant of supervisory and regulatory powers to the COMELEC over vehicle.—A franchise or permit to operate transportation utilities
franchises and permits to operate, though seemingly unrestrained, pertains to considerations affecting the operation of the PUV as
has its limits. Notwithstanding the ostensibly broad supervisory such, e.g., safety of the passengers, routes or zones of operation,
and regulatory powers granted to the COMELEC during an election maintenance of the vehicle, of reasonable fares, rates, and other
period under Section 4, Article IX-C of the Constitution, the Court charges, or, in certain cases, nationality. Thus, a government
had issuance, which purports to regulate a franchise or permit to
443
operate PUVs, must pertain to the considerations affecting its
VOL. 755, APRIL 14, 2015 443 operation as such. Otherwise, it becomes a regulation or
supervision not on the franchise or permit to operate, but on the places, with the consent of the owner thereof, and in public places or
very ownership of the vehicle used for public transport. The property, which are allocated equitably and impartially.—Section 9
expression of ideas or opinion of an owner of a PUV, through the of R.A. No. 9006 authorizes political parties and party-list groups
444 and independent candidates to erect common poster areas and
VOL. 755, APRIL 14, 2015 444 candidates to post lawful election campaign materials in private
1-United Transport Koalisyon (1-UTAK) vs. Commission on places, with the consent of the owner thereof, and in public places
Elections or property, which are allocated equitably and impartially. Further,
posting of election campaign materials on the vehicle, does not Section 13 of R.A. No.
445
affect considerations pertinent to the operation of the PUV. Surely,
posting a decal expressing support for a certain candidate in an
VOL. 755, APRIL 14, 2015 445
election will not in any manner affect the operation of the PUV as 1-United Transport Koalisyon (1-UTAK) vs. Commission on
such. Regulating the expression of ideas or opinion in a PUV, Elections
through the posting of an election campaign material thereon, is not
a regulation of the franchise or permit to operate, but a regulation 7166 provides for the authorized expenses of registered
on the very ownership of the vehicle. political parties and candidates for every voter; it affords
Same; Same; Same; Commission on Elections; The Commission candidates equal opportunity in their election campaign by
on Elections (COMELEC) does not have the constitutional power to regulating the amount that should be spent for each voter.
regulate public transport terminals owned by private persons; A Same; Statement of Contributions and Expenditures; Section
regulation of public transport terminals based on extraneous 14 of Republic Act (RA) No. 7166 requires all candidates and
circumstances, such as prohibiting the posting of election campaign treasurers of registered political parties to submit a statement of all
materials thereon, amounts to regulating the ownership of the contributions and expenditures in connection with the election.—
transport terminal and not merely the permit to operate the same.— Section 14 of R.A. No. 7166 requires all candidates and treasurers
In the same manner, the COMELEC does not have the of registered political parties to submit a statement of all
constitutional power to regulate public transport terminals owned contributions and expenditures in connection with the election.
by private persons. The ownership of transport terminals, even if Section 14 is a post-audit measure that aims to ensure that the
made available for use by the public commuters, likewise remains candidates did not overspend in their election campaign, thereby
private. Although owners of public transport terminals may be enforcing the grant of equal opportunity to candidates under
required by local governments to obtain permits in order to operate, Section 13. A strict implementation of the foregoing provisions of
the permit only pertains to circumstances affecting the operation of law would suffice to achieve the governmental interest of ensuring
the transport terminal as such. The regulation of such permit to equal time, space, and opportunity for candidates in elections.
operate should similarly be limited to circumstances affecting the There is thus no necessity of still curtailing the right to free speech
operation of the transport terminal. A regulation of public transport of the owners of PUVs and transport terminals by prohibiting them
terminals based on extraneous circumstances, such as prohibiting from posting election campaign materials on their properties.
the posting of election campaign materials thereon, amounts to Constitutional Law; Freedom of Speech and of Expression;
regulating the ownership of the transport terminal and not merely Captive-Audience Doctrine; The captive-audience doctrine states
the permit to operate the same. that when a listener cannot, as a practical matter, escape from
Election Law; Common Poster Areas; Section 9 of Republic Act intrusive speech, the speech can be restricted.—The captive-
(RA) No. 9006 authorizes political parties and party-list groups and audience doctrine states that when a listener cannot, as a practical
independent candidates to erect common poster areas and matter, escape from intrusive speech, the speech can be restricted.
candidates to post lawful election campaign materials in private The “captive-audience” doctrine recognizes that a listener has a
right not to be exposed to an unwanted message in circumstances according to the circumstances surrounding them. It guarantees
in which the communication cannot be avoided. A regulation based equality, not identity of rights. The Constitution does not require
on the captive-audience doctrine is in the guise of censorship, which that things, which are different in fact, be treated in law as though
undertakes selectively to shield the public from some kinds of they were the same. The equal protection clause does not forbid
speech on the ground that they are more offensive than others. Such discrimination as to things that are different. In order that there
selective restrictions have been upheld only when the speaker can be valid classification so that a discriminatory governmental
intrudes on the privacy of the home or the degree of captivity makes act may pass the constitutional norm of equal protection, it is
it either impossible or impractical for the unwilling viewer or necessary that the four requisites of valid classification be complied
auditor to avoid exposure. with, namely: (1) it must be based upon substantial distinctions; (2)
Same; Same; Same; A government regulation based on the it must be germane to the purposes of the law; (3) it must not be
captive limited to existing conditions only; and (4) it must apply equally to
446 all members of the class.
446 SUPREME COURT REPORTS ANNOTATED Same; Freedom of Speech and of Expression; It bears stressing
1-United Transport Koalisyon (1-UTAK) vs. Commission on that the freedom to advertise one’s political candidacy is clearly a
Elections significant part of our freedom of expression.—It bears stressing
-audience doctrine may not be justified if the supposed “captive that the freedom to advertise one’s political candidacy is clearly a
audience” may avoid exposure to the otherwise intrusive speech.—A signifi
447
government regulation based on the captive-audience doctrine may
not be justified if the supposed “captive audience” may avoid
VOL. 755, APRIL 14, 2015 447
exposure to the otherwise intrusive speech. The prohibition under 1-United Transport Koalisyon (1-UTAK) vs. Commission on
Section 7(g) items (5) and (6) of Resolution No. 9615 is not justified Elections
under the captive-audience doctrine; the commuters are not forced cant part of our freedom of expression. A restriction on this
or compelled to read the election campaign materials posted on freedom without rhyme or reason is a violation of the most valuable
PUVs and transport terminals. Nor are they incapable of declining feature of the democratic way of life.
to receive the messages contained in the posted election campaign SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
materials since they may simply avert their eyes if they find the The facts are stated in the opinion of the Court.
same unbearably intrusive. Donald V. Diaz and Geomelyn Sarah D. Sacramento for
Same; Equal Protection of the Law; The Constitution does not petitioner.
require that things, which are different in fact, be treated in law as
The Solicitor General for respondent.
though they were the same. The equal protection clause does not
forbid discrimination as to things that are different.—“The equal
protection clause is aimed at all official state actions, not just those REYES, J.:
of the legislature. Its inhibitions cover all the departments of the
government including the political and executive departments, and The right to participate in electoral processes is a basic and
extend to all actions of a state denying equal protection of the laws, fundamental right in any democracy. It includes not only the
through whatever agency or whatever guise is taken.” right to vote, but also the right to urge others to vote for a
Nevertheless, the guaranty of equal protection of the laws is not a particular candidate. The right to express one’s preference for
guaranty of equality in the application of the laws to all citizens of a candidate is likewise part of the fundamental right to free
the state. Equality of operation of statutes does not mean their speech. Thus, any governmental restriction on the right to
indiscriminate operation on persons merely as such, but on persons
convince others to vote for a candidate carries with it a heavy implementing R.A. No. 9006 in connection with the May 13,
presumption of invalidity. 2013 national and local elections and subsequent elections.
This is a petition for certiorari1 under Rule 64 and Rule 65 Section 7 thereof, which enumerates the prohibited forms of
of the Rules of Court filed by 1-United Transport Koalisyon election propaganda, pertinently provides:
(petitioner), a party-list organization, assailing Section 7(g) SEC. 7. Prohibited Forms of Election Propaganda.—
items (5) and (6), in relation to Section 7(f), of Resolution No. During the campaign period, it is unlawful:
96152 of the Commission on Elections (COMELEC). xxxx
(f) To post, display or exhibit any election campaign or
propaganda material outside of authorized common poster areas, in
The Facts
public places, or in private properties without the consent of the
owner thereof.
On February 12, 2001, Republic Act (R.A.) No. 9006, (g) Public places referred to in the previous subsection (f)
otherwise known as the “Fair Elections Act,” was passed. include any of the following:
Section 9 thereof provides: xxxx
_______________ 5. Public utility vehicles such as buses, jeepneys, trains, taxi
cabs, ferries, pedicabs and tricycles, whether motorized or not;
1 Rollo, pp. 3-31.
449
2 Id., at pp. 31-59.
448 VOL. 755, APRIL 14, 2015 449
448 SUPREME COURT REPORTS ANNOTATED 1-United Transport Koalisyon (1-UTAK) vs. Commission on
1-United Transport Koalisyon (1-UTAK) vs. Commission on Elections
Elections 6. Within the premises of public transport terminals, such as
Sec. 9. Posting of Campaign Materials.—The COMELEC bus terminals, airports, seaports, docks, piers, train stations, and
may authorize political parties and party-list groups to erect the like.
common poster areas for their candidates in not more than ten (10) The violation of items [5 and 6] under subsection (g) shall be a
public places such as plazas, markets, barangay centers and the cause for the revocation of the public utility franchise and will make
like, wherein candidates can post, display or exhibit election the owner and/or operator of the transportation service and/or
propaganda: Provided, That the size of the poster areas shall not terminal liable for an election offense under Section 9 of Republic
exceed twelve (12) by sixteen (16) feet or its equivalent. Act No. 9006 as implemented by Section 18(n) of these Rules.3
Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten In its letter4 dated January 30, 2013, the petitioner,
(10) public places, the size of which shall not exceed four (4) by six through its president, Melencio F. Vargas, sought clarification
(6) feet or its equivalent. from the COMELEC as regards the application of Resolution
Candidates may post any lawful propaganda material in No. 9615, particularly Section 7(g) items (5) and (6), in
private places with the consent of the owner thereof, and in public relation to Section 7(f), vis-à-vis privately-owned public
places or property which shall be allocated equitably and utility vehicles (PUVs) and transport terminals. The
impartially among the candidates. petitioner explained that the prohibition stated in the
aforementioned provisions impedes the right to free speech of
On January 15, 2013, the COMELEC promulgated the private owners of PUVs and transport terminals. The
Resolution No. 9615, which provided for the rules petitioner then requested the COMELEC to reconsider the
implementation of the assailed provisions and allow private equalization of opportunities for all candidates for political office
owners of PUVs and transport terminals to post election during elections — a policy which Res. No. 9615 merely
campaign materials on their vehicles and transport terminals. implements.
On February 5, 2013, the COMELEC En Banc issued As required in Adiong, and in compliance with
the O’Brien standards, the prohibition furthers two important and
Minute Resolution No. 13-0214,5 which denied the petitioner’s
substantial governmental interests — equalizing opportunity, time,
request to reconsider the implementation of Section 7(g) items
and space for all candidates, and putting to a stop excessive
(5) and (6), in relation to Section 7(f), of Resolution No. 9615. campaign spending. The regulation bears a clear and reasonable
The COMELEC En Banc, adopting the recommendation of nexus with these Constitutionally- and statutorily-sanctioned
Commissioner Christian Robert S. Lim, opined that: objectives, and the infringement of freedom is merely incidental and
From the foregoing, x x x the primary fact in consideration here limited as to time. The Commission has not taken away all avenues
is actually whether 1-UTAK or any other [PUV] owners in the same of expression available to PUV and transport terminal owners.
position do in fact possess a They may express their political preferences elsewhere.
_______________ The exact purpose for placing political advertisements on a PUV
or in transport terminals is exactly because it is public and can
3 Id., at pp. 37-39.
4 Id., at pp. 95-99. be seen by all; and al
5 Id., at pp. 103-105. 451
450 VOL. 755, APRIL 14, 2015 451
450 SUPREME COURT REPORTS ANNOTATED 1-United Transport Koalisyon (1-UTAK) vs. Commission on
1-United Transport Koalisyon (1-UTAK) vs. Commission on Elections
Elections though it is true that private vehicles ply the same route as
franchise and/or certificate of public convenience and public vehicles, the exposure of a [PUV] servicing the general,
operate as a public utility. If it does not, then the ruling riding public is much more compared to private
in Adiong applies squarely. If it does, then its operations, pursuant vehicles. Categorizing PUVs and transport terminals as
to Section 4, Article IX-C of the Constitution, will be placed directly ‘public places’ under Section 7(f) of Reso. No. 9615 is
under the supervision and regulation of the Commission for the therefore logical. The same reasoning for limiting political
duration of the election period so as to ensure equality of advertisements in print media, in radio, and in television therefore
opportunity, time, and space for all candidates in the placement of holds true for political advertisements in PUVs and transport
political advertisements. Having placed their property for use by terminals.6
the general public and having secured a license or permit to do so,
1-UTAK and other PUV owners, as well as transport terminal Hence, the instant petition.
owners, cannot now complain that their property is subject to
regulation by the State. Securing a franchise or a certificate of Arguments of the Petitioner
public convenience in their favor does not exempt them from the
burdens imposed by the Constitution, Republic Act No. 9006 x x x, The petitioner maintains that Section 7(g) items (5) and (6),
and other related statutes. It must be stressed that the Constitution
in relation to Section 7(f), of Resolution No. 9615 violate the
itself, under Section 6, Article XII, commands that the use of
right to free speech of the owners of PUVs and transport
property bears a social function and all economic agents
shall contribute to the common good; and there is no higher terminals; that the prohibition curtails their ideas of who
common good than that as espoused in R.A. No. 9006 — the should be voted by the public. The petitioner also claims that
there is no substantial public interest threatened by the campaign materials to the captive audience that they
posting of political advertisements on PUVs and transport transport.
terminals to warrant the prohibition imposed by the The COMELEC further claims that Resolution No. 9615 is
COMELEC. Further, the petitioner posits that the ownership a valid content-neutral regulation and, thus, does not impinge
of the PUVs per se, as well as the transport terminals, on the constitutional right to freedom of speech. It avers that
remains private and, hence, the owners thereof could not be the assailed regulation is within the constitutional power of
prohibited by the COMELEC from expressing their political the COMELEC pursuant to Section 4, Article IX-C of the
opinion lest their property rights be unduly intruded upon. Constitution. The COMELEC alleges that the regulation
Further, assuming that substantial public interest exists simply aims to ensure equal campaign opportunity, time, and
in the said prohibition imposed under Resolution No. 9615, space for all candidates — an important and substantial
the petitioner claims that the curtailment of the right to free governmental interest, which is totally unrelated to the
speech of the owners of PUVs and transport terminals is much suppression of free expression; that any restriction on free
greater than is necessary to achieve the desired governmental speech is merely incidental and is no greater than is essential
purpose, i.e., ensuring equality of opportunity to all to the furtherance of the said governmental interest.
candidates in elective office.
_______________ The Issue
6 Id., at pp. 104-105.
452 The petitioner presents the following issues for the Court’s
452 SUPREME COURT REPORTS ANNOTATED resolution:
453
1-United Transport Koalisyon (1-UTAK) vs. Commission on
VOL. 755, APRIL 14, 2015 453
Elections
1-United Transport Koalisyon (1-UTAK) vs. Commission on
Arguments of COMELEC
Elections
I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE
On the other hand, the COMELEC posits that privately-
RIGHT TO FREE SPEECH OF THE OWNERS OF [PUVs] AND
owned PUVs and transport terminals are public spaces that TRANSPORT TERMINALS.
are subject to its regulation. It explains that under the II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A
Constitution, the COMELEC has the power to enforce and RESTRAINT TO FREE SPEECH AND EXPRESSION FOR
administer all laws and regulations relative to the conduct of FAILURE TO SATISFY THE O’BRIEN TEST.
an election, including the power to regulate the enjoyment or III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO
utilization of all franchises and permits for the operation of GIVE AN EQUAL OPPORTUNITY TO INFORM THE
transportation utilities. ELECTORATE IS NOT IMPAIRED BY POSTING POLITICAL
The COMELEC points out that PUVs and private ADVERTISEMENTS ON PUVs AND TRANSPORT TERMINALS.
transport terminals hold a captive audience — the IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS
DIFFERENT AND INDEPENDENT FROM THE FRANCHISE OR
commuters, who have no choice but be subjected to the blare
OPERATION OF THE PUBLIC UTILITY, THE FORMER BEING
of political propaganda. Thus, the COMELEC avers, it is
BEYOND THE POWER OF REGULATION BY THE COMELEC.7
within its constitutional authority to prevent privately-owned
PUVs and transport terminals from concurrently serving
In sum, the issue presented for the Court’s resolution is Resolution No. 9615 are prior
whether Section 7(g) items (5) and (6), in relation to Section restraints on speech.
7(f), of Resolution No. 9615, which prohibits the posting of any
election campaign or propaganda material, inter alia, in Free speech may be identified with the liberty to discuss
PUVs and public transport terminals are valid regulations. publicly and truthfully any matter of public concern without
prior restraint or censorship and subsequent
Ruling of the Court punishment.9 Prior restraint refers to official governmental
restrictions on the press or other forms of expression in
The petition is meritorious. advance of actual publication or dissemination. Freedom from
Resolution No. 9615, which was promulgated pursuant to prior restraint is largely freedom from government censorship
Section 4, Article IX-C of the Constitution and the provisions of publications, whatever the form of censorship, and
of R.A. No. 9006, lays down the administrative rules relative regardless of whether it is wielded by the executive,
to the COMELEC’s exercise of its supervisory and regulatory legislative or judicial branch of the government.10 Any system
powers over all franchises and permits for the operation of of prior restraints of expression comes to this Court bearing a
transportation and other public utilities, media of heavy presumption against its validity.11
communication or information, and all grants, special _______________
privileges, or concessions granted by the Government.
8 Social Justice Society (SJS) v. Dangerous Drugs Board, 591 Phil. 393,
_______________
405; 570 SCRA 410, 422-423 (2008).
9 Reyes v. Bagatsing, 210 Phil. 457, 465-466; 125 SCRA 553, 560 (1983).
7 Id., at pp. 11-12.
10 Chavez v. Gonzalez, 569 Phil. 155, 203; 545 SCRA 441, 491 (2008).
454
11 See Bantam Books v. Sullivan, 372 U.S. 58 (1963).
454 SUPREME COURT REPORTS ANNOTATED 455
1-United Transport Koalisyon (1-UTAK) vs. Commission on VOL. 755, APRIL 14, 2015 455
Elections 1-United Transport Koalisyon (1-UTAK) vs. Commission on
Like any other administrative regulations, Resolution No. Elections
9615, or any part thereof, must not run counter to the Section 7(g) items (5) and (6), in relation to Section 7(f), of
Constitution. It is basic that if a law or an administrative rule Resolution No. 9615 unduly infringe on the fundamental right
violates any norm of the Constitution, that issuance is null of the people to freedom of speech. Central to the prohibition
and void and has no effect. The Constitution is the basic law is the freedom of individuals, i.e., the owners of PUVs and
to which all laws must conform; no act shall be valid if it private transport terminals, to express their preference,
conflicts with the Constitution.8 In this regard, an through the posting of election campaign material in their
administrative regulation, even if it purports to advance a property, and convince others to agree with them.
legitimate governmental interest, may not be permitted to Pursuant to the assailed provisions of Resolution No. 9615,
run roughshod over the cherished rights of the people posting an election campaign material during an election
enshrined in the Constitution. period in PUVs and transport terminals carries with it the
penalty of revocation of the public utility franchise and shall
Section 7(g) items (5) and (6), make the owner thereof liable for an election offense. The
in relation to Section 7(f), of
prohibition constitutes a clear prior restraint on the right to correctly paid for advertisements or purchased opinions with less
free expression of the owners of PUVs and transport reason can we sanction the prohibition against a sincere
terminals. As a result of the prohibition, owners of PUVs and manifestation of support and a proclamation of belief by an
transport terminals are forcefully and effectively inhibited individual person who pastes a sticker or decal on his
private property.15 (Emphases ours)
from expressing their preferences under the pain of
indictment for an election offense and the revocation of their
The assailed prohibition on posting
franchise or permit to operate.
election campaign materials is an
It is now deeply embedded in our jurisprudence that
invalid content-neutral regulation
freedom of speech and of the press enjoys a preferred status
repugnant to the free speech clause.
in our hierarchy of rights. The rationale is that the
preservation of other rights depends on how well we protect
The COMELEC claims that while Section 7(g) items (5)
our freedom of speech and of the press.12 It has been our
and (6) of Resolution No. 9615 may incidentally restrict the
constant holding that this preferred freedom calls all the more
right to free speech of owners of PUVs and transport
for utmost respect when what may be curtailed is the
terminals, the same is nevertheless constitutionally
dissemination of information to make more meaningful the
permissible since it is a valid content-neutral regulation.
equally vital right of suffrage.13
_______________ The Court does not agree.
_______________
12 J. Puno, Concurring Opinion, Social Weather Stations, Inc. v.
COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496, 512. 14 G.R. No. 103956, March 31, 1992, 207 SCRA 712.
13 Mutuc v. COMELEC, 146 Phil. 798, 805-806; 36 SCRA 228, 236 (1970). 15 Id., at p. 719.
456 457
456 SUPREME COURT REPORTS ANNOTATED VOL. 755, APRIL 14, 2015 457
1-United Transport Koalisyon (1-UTAK) vs. Commission on 1-United Transport Koalisyon (1-UTAK) vs. Commission on
Elections Elections
Thus, in Adiong v. COMELEC,14 the Court struck down the A content-neutral regulation, i.e., which is merely
COMELEC’s prohibition against the posting of decals and concerned with the incidents of the speech, or one that merely
stickers on “mobile places.” The Court ratiocinated that: controls the time, place or manner, and under well-defined
Significantly, the freedom of expression curtailed by the standards,16 is constitutionally permissible, even if it restricts
questioned prohibition is not so much that of the candidate or the the right to free speech, provided that the following requisites
political party. The regulation strikes at the freedom of an concur: first, the government regulation is within the
individual to express his preference and, by displaying it on constitutional power of the Government; second, it furthers an
his car, to convince others to agree with him. A sticker may important or substantial governmental interest; third, the
be furnished by a candidate but once the car owner agrees to have governmental interest is unrelated to the suppression of free
it placed on his private vehicle, the expression becomes a statement expression; and fourth, the incidental restriction on freedom
by the owner, primarily his own and not of anybody else. If, in
of expression is no greater than is essential to the furtherance
the National Press Club case, the Court was careful to rule out
restrictions on reporting by newspaper or radio and television
of that interest.17
stations and commentators or columnists as long as these are not
Section 7(g) items (5) and (6) of Resolution No. 9615 are enjoyment or utilization of all franchises or permits for the
content-neutral regulations since they merely control the operation of transportation utilities during an election period.
place where election campaign materials may be posted. How- Section 4, Article IX-C of the Constitution, thus provides:
ever, the prohibition is still repugnant to the free speech Section 4. The Commission may, during the election period,
clause as it fails to satisfy all of the requisites for a valid supervise or regulate the enjoyment or utilization of all franchises
content-neutral regulation. or permits for the operation of transportation and other public
It is conceded that Resolution No. 9615, including the utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any
herein assailed provisions, furthers an important and
subdivision, agency, or instrumentality thereof, including any
substantial governmental interest, i.e., ensuring equal
government-owned or -controlled corporation or its subsidiary.
opportunity, time and space among candidates aimed at the Such supervision or regulation shall aim to ensure equal
holding of free, orderly, honest, peaceful, and credible opportunity, time, and space, and the right to reply, including
elections. It is further conceded that the governmental reasonable, equal rates therefor, for public information campaigns
interest in imposing the said prohibition is unrelated to the and forums among candidates in connection with the objective of
suppression of free expression. However, Section 7(g) items (5) holding free, orderly, honest, peaceful, and credible elections.
and (6), in relation to Section 7(f), of Resolution No. 9615, are
not within the constitutionally delegated power of the Nevertheless, the constitutional grant of supervisory and
COMELEC under Section 4, Article IX-C of the Constitution. regulatory powers to the COMELEC over franchises and
Also, there is absolutely no necessity to restrict the right to permits to operate, though seemingly unrestrained, has its
free speech of the owners of PUVs and transport terminals. limits. Notwithstanding the ostensibly broad supervisory and
_______________ regulatory powers granted to the COMELEC during an
election period under Section 4, Article IX-C of the
16 Supra note 10 at p. 204; p. 493.
17 Supra note 12 at p. 504, citing United States v. O’Brien, 391 U.S. 367, Constitution, the Court had previously set out the limitations
377. thereon. In Adiong, the Court, while recognizing that the
458 COMELEC has supervisory power vis-à-vis the conduct and
458 SUPREME COURT REPORTS ANNOTATED manner of elections under Section 4, Article IX-C of the
1-United Transport Koalisyon (1-UTAK) vs. Commission on Constitution, never-
Elections 459
The COMELEC may only regulate VOL. 755, APRIL 14, 2015 459
the franchise or permit to operate 1-United Transport Koalisyon (1-UTAK) vs. Commission on
and not the ownership per se of Elections
PUVs and transport terminals. theless held that such supervisory power does not extend
to the very freedom of an individual to express his preference
The prohibition under Section 7(g) items (5) and (6), in of candidates in an election by placing election campaign
relation to Section 7(f), of Resolution No. 9615 is not within stickers on his vehicle.
the COMELEC’s constitutionally delegated power of In National Press Club v. COMELEC,18 while the Court
supervision or regulation. It is not disputed that the upheld the constitutionality of a prohibition on the selling or
COMELEC has the power to supervise or regulate the giving free of charge, except to the COMELEC, of advertising
space and commercial time during an election period, it was the ownership per se of the vehicles used for public transport.
emphasized that the grant of supervisory and regulatory Thus, in Tatad v. Garcia, Jr.,21 the Court explained that:
powers to the COMELEC under Section 4, Article IX-C of the What private respondent owns are the rail tracks, rolling stocks
Constitution, is limited to ensuring equal opportunity, time, like the coaches, rail stations, terminals and the power plant, not a
space, and the right to reply among candidates. public utility. While a franchise is needed to operate these facilities
Further, in Social Weather Stations, Inc. v. to serve the public, they do not by themselves constitute a public
utility. What constitutes a public utility is not their ownership but
COMELEC,19 the Court, notwithstanding the grant of
their use to serve the public x x x.
supervisory and regulatory powers to the COMELEC under
The Constitution, in no uncertain terms, requires a franchise for
Section 4, Article IX-C of the Constitution, declared the operation of a public utility. However, it does not require a
unconstitutional a regulation prohibiting the release of franchise before one can own the facilities needed to operate a
election surveys prior to the election since it “actually public utility so long as it does not operate them to serve the public.
suppresses a whole class of expression, while allowing the xxxx
expression of opinion concerning the same subject matter by In law, there is a clear distinction between the
newspaper columnists, radio and [television (TV)] “operation” of a public utility and the ownership of the
commentators, armchair theorists, and other opinion facilities and equipment used to serve the public.
makers.”20 xxxx
In the instant case, the Court further delineates the The right to operate a public utility may exist
independently and separately from the ownership of the
constitutional grant of supervisory and regulatory powers to
facilities thereof. One can own said facilities without
the COMELEC during an election period. As worded, Section
operating them as a public utility, or conversely, one may
4, Article IX-C of the Constitution only grants COMELEC operate a public utility without owning the facilities used to
supervisory and regulatory powers over the enjoyment or serve the public. The devotion of property to serve the public may
utilization “of all franchises or permits for the be done by the owner or by the person in control thereof who may
operation,” inter alia, of transportation and other public not necessarily be the owner thereof.
utilities. The COMELEC’s constitutionally delegated powers This dichotomy between the operation of a public utility and the
of supervision and regulation do not extend to the ownership of the facilities used to serve the public can be very well
ownership per seof PUVs and transport terminals, but only to appreciated when we consider the transportation industry.
the franchise or permit to operate the same. Enfranchised airline and
_______________ _______________

18 G.R. No. 102653, March 5, 1992, 207 SCRA 1. 21 313 Phil. 296; 243 SCRA 436 (1995).
19 Supra note 12. 461
20 Id., at p. 505. VOL. 755, APRIL 14, 2015 461
460 1-United Transport Koalisyon (1-UTAK) vs. Commission on
460 SUPREME COURT REPORTS ANNOTATED Elections
1-United Transport Koalisyon (1-UTAK) vs. Commission on shipping companies may lease their aircraft and vessels instead
Elections of owning them themselves.22 (Emphases ours)
There is a marked difference between the franchise or
permit to operate transportation for the use of the public and
The franchise or permit to operate transportation utilities 1-United Transport Koalisyon (1-UTAK) vs. Commission on
is a privilege granted to certain persons to engage in the Elections
business of transporting people or goods; it does not refer to lation or supervision not on the franchise or permit to
the ownership of the vehicle per se. Ownership is a relation in operate, but on the very ownership of the vehicle used for
private law by virtue of which a thing pertaining to one person public transport.
is completely subjected to his will in everything not prohibited The expression of ideas or opinion of an owner of a PUV,
by public law or the concurrence with the rights of through the posting of election campaign materials on the
another.23 Thus, the owner of a thing has the right to enjoy vehicle, does not affect considerations pertinent to the
and dispose of a thing, without other limitations than those operation of the PUV. Surely, posting a decal expressing
established by law.24 support for a certain candidate in an election will not in any
One such limitation established by law, as regards PUVs, manner affect the operation of the PUV as such. Regulating
is the franchise or permit to operate. However, a franchise or the expression of ideas or opinion in a PUV, through the
permit to operate a PUV is a limitation only on certain aspects posting of an election campaign material thereon, is not a
of the ownership of the vehicle pertinent to the franchise or regulation of the franchise or permit to operate, but a
permit granted, but not on the totality of the rights of the regulation on the very ownership of the vehicle.
owner over the vehicle. Otherwise stated, a restriction on the The dichotomy between the regulation of the franchise or
franchise or permit to operate transportation utilities is permit to operate of a PUV and that of the very ownership
necessarily a limitation on ownership, but a limitation on the thereof is better exemplified in the case of commercial
rights of ownership over the PUV is not necessarily a advertisements posted on the vehicle. A prohibition on the
regulation on the franchise or permit to operate the same. posting of commercial advertisements on a PUV is considered
A franchise or permit to operate transportation utilities a regulation on the ownership of the vehicle per se; the
pertains to considerations affecting the operation of the PUV restriction on the enjoyment of the ownership of the vehicle
as such, e.g., safety of the passengers, routes or zones of does not have any relation to its operation as a PUV.
operation, maintenance of the vehicle, of reasonable fares, On the other hand, prohibitions on the posting of
rates, and other charges, or, in certain cases, commercial advertisements on windows of buses, because it
nationality.25 Thus, a government issuance, which purports to hinders police authorities from seeing whether the passengers
regulate a franchise or permit to operate PUVs, must pertain inside are safe, is a regulation on the franchise or permit to
to the considerations affecting its operation as such. operate. It has a direct relation to the operation of the vehicle
Otherwise, it becomes a regu- as a PUV, i.e., the safety of the passengers.
_______________ In the same manner, the COMELEC does not have the
22 Id., at pp. 321-323; pp. 452-453. constitutional power to regulate public transport terminals
23 Tolentino, Commentaries and Jurisprudence on the Civil Code of the owned by private persons. The ownership of transport
Philippines, Vol. II, p. 45, 1992 ed. terminals, even if made available for use by the public
24 Civil Code of the Philippines, Article 428. commuters, likewise remains private. Although owners of
25 1987 Constitution, Article XII, Section 11.
462 public transport terminals may be required by local
462 SUPREME COURT REPORTS ANNOTATED governments to obtain permits in order to operate, the permit
only pertains to circumstances affecting the operation of the
transport terminal as such. The regulation of such permit to mass media, it could likewise empower it to impose a similar
operate should simi- ban on PUVs and transport terminals.
463 The Court does not agree.
VOL. 755, APRIL 14, 2015 463 _______________
1-United Transport Koalisyon (1-UTAK) vs. Commission on
26 351 Phil. 692; 288 SCRA 447 (1998).
Elections 464
larly be limited to circumstances affecting the operation of 464 SUPREME COURT REPORTS ANNOTATED
the transport terminal. A regulation of public transport 1-United Transport Koalisyon (1-UTAK) vs. Commission on
terminals based on extraneous circumstances, such as Elections
prohibiting the posting of election campaign materials The restriction imposed under Section 11(b) of R.A. No.
thereon, amounts to regulating the ownership of the transport 6646 has a direct relation to the enjoyment and utilization of
terminal and not merely the permit to operate the same. the franchise or permit to operate of newspapers, radio
Accordingly, Section 7(g) items (5) and (6) of Resolution No. broadcasting and TV stations, and other mass media, which
9615 are not within the constitutionally delegated power of the COMELEC has the power to regulate pursuant to Section
the COMELEC to supervise or regulate the franchise or 4, Article IX-C of the Constitution. The print space or airtime
permit to operate of transportation utilities. The posting of is an integral part of the franchise or permit to operate of mass
election campaign material on vehicles used for public media utilities. Thus, the restriction under Section 11(b) of
transport or on transport terminals is not only a form of R.A. No. 6646 is within the confines of the constitutionally
political expression, but also an act of ownership — it has delegated power of the COMELEC under Section 4, Article IX-
nothing to do with the franchise or permit to operate the PUV C of the Constitution.
or transport terminal. On the other hand, the prohibition on the posting of
election campaign materials under Section 7(g) items (5) and
The rulings in National Press
(6) of Resolution No. 9615, as already explained, does not have
Club and Osmeña v. COMELEC26 any relation to the franchise or permit of PUVs and transport
find no application to this case.
terminals to operate as such and, hence, is beyond the power
of the COMELEC under Section 4, Article IX-C of the
The COMELEC pointed out that the issue presented in the Constitution.
instant case is akin to the Court’s rulings in National Press
Club and Osmeña. It explained that in both cases, the Court The restriction on free speech of
sustained Section 11(b) of R.A. No. 6646 or the Electoral owners of PUVs and transport termi-
Reforms Law of 1997, which prohibits newspapers, radio nals is not necessary to further the
broadcasting or TV stations, and other mass media from stated governmental interest.
selling or giving print space or airtime for campaign or other
political purposes, except to the COMELEC, during the Section 7(g) items (5) and (6) of Resolution No. 9615
election campaign. The COMELEC averred that if the likewise failed to satisfy the fourth requisite of a valid
legislature can empower it to impose an advertising ban on content-neutral regulation, i.e., the incidental restriction on
freedom of expression is no greater than is essential to the
furtherance of that interest. There is absolutely no necessity minutes of television advertisement and ninety (90) minutes of
to restrict the right of the owners of PUVs and transport radio advertisement whether by purchase or donation.
terminals to free speech to further the governmental interest. For this purpose, the COMELEC shall require any broadcast
While ensuring equality of time, space, and opportunity to station or entity to submit to the COMELEC a copy of its broadcast
logs and certificates of performance for the review and verification
candidates is an important and substantial governmental
of the frequency, date, time and duration of advertisements
interest and is essential to the conduct of an orderly election,
broadcast for any candidate or political party.
this lofty aim may be achieved sans any intrusion on the 6.3 All mass media entities shall furnish the COMELEC with
fundamental right of expression. a copy of all contracts for advertising, promoting or opposing any
First, while Resolution No. 9615 was promulgated by the political party or the candidacy of any person for public office within
COMELEC to implement the provisions of R.A. No. 9006, the five (5) days af-
465 466
VOL. 755, APRIL 14, 2015 465 466 SUPREME COURT REPORTS ANNOTATED
1-United Transport Koalisyon (1-UTAK) vs. Commission on 1-United Transport Koalisyon (1-UTAK) vs. Commission on
Elections Elections
prohibition on posting of election campaign materials on ter its signing. In every case, it shall be signed by the donor, the
PUVs and transport terminals was not provided for therein. candidate concerned or by the duly authorized representative of the
Second, there are more than sufficient provisions in our political party.
present election laws that would ensure equal time, space, 6.4 No franchise or permit to operate a radio or television
and opportunity to candidates in elections. Section 6 of R.A. station shall be granted or issued, suspended or cancelled during
the election period. In all instances, the COMELEC shall supervise
No. 9006 mandates that “all registered parties and bona
the use and employment of press, radio and television facilities
fide candidates shall have equal access to media time and
insofar as the placement of political advertisements is concerned to
space” and outlines the guidelines to be observed in the ensure that candidates are given equal opportunities under equal
implementation thereof, viz.: circumstances to make known their qualifications and their stand
Section 6. Equal Access to Media Time and Space.—All on public issues within the limits set forth in the Omnibus Election
registered parties and bona fide candidates shall have equal access Code and Republic Act No. 7l66 on election spending.
to media time and space. The following guidelines may be amplified The COMELEC shall ensure that radio or television or cable
on by the COMELEC: television broadcasting entities shall not allow the scheduling of
6.1 Print advertisements shall not exceed one-fourth (1/4) page any program or permit any sponsor to manifestly favor or oppose
in broadsheet and one-half (1/2) page in tabloids thrice a week per any candidate or political party by unduly or repeatedly referring
newspaper, magazine or other publications, during the campaign to or including said candidate and/or political party in such program
period. respecting, however, in all instances the right of said broadcast
6.2 a. Each bona fide candidate or registered political party entities to air accounts of significant news or news worthy events
for a nationally elective office shall be entitled to not more than one and views on matters of public interest.
hundred twenty (120) minutes of television advertisement and one 6.5 All members of media, television, radio or print, shall
hundred eighty (180) minutes of radio advertisement whether by scrupulously report and interpret the news, taking care not to
purchase or donation. suppress essential facts nor to distort the truth by omission or
b. Each bona fide candidate or registered political party for a improper emphasis. They shall recognize the duty to air the other
locally elective office shall be entitled to not more than sixty (60) side and the duty to correct substantive errors promptly.
6.6 Any mass media columnist, commentator, announcer, support from any political party may be allowed to spend Five Pesos (P5.00)
reporter, on-air correspondent or personality who is a candidate for for every such voter; and
For political parties. — Five pesos (P5.00) for every voter currently
any elective public office or is a campaign volunteer for or employed
registered in the constituency or constituencies where it has official
or retained in any capacity by any candidate or political candidates.
467 Any provision of law to the contrary notwithstanding any contribution in
VOL. 755, APRIL 14, 2015 467 cash or in kind to any candidate or political party or coalition of parties for
1-United Transport Koalisyon (1-UTAK) vs. Commission on campaign purposes, duly reported to the Commission shall not be subject to
the payment of any gift tax.
Elections 28 An Act Providing for Synchronized National and Local Elections and
party shall be deemed resigned, if so required by their employer, Electoral Reforms, Authorizing Appropriations Therefor, and for Other
or shall take a leave of absence from his/her work as such during Purposes.
the campaign period: Provided, That any media practitioner who is 468
an official of a political party or a member of the campaign staff of 468 SUPREME COURT REPORTS ANNOTATED
a candidate or political party shall not use his/her time or space to 1-United Transport Koalisyon (1-UTAK) vs. Commission on
favor any candidate or political party. Elections
6.7 No movie, cinematograph or documentary portraying the
life or biography of a candidate shall be publicly exhibited in a
dates for every voter; it affords candidates equal
theater, television station or any public forum during the campaign
period. opportunity in their election campaign by regulating the
6.8 No movie, cinematograph or documentary portrayed by an amount that should be spent for each voter. Likewise, Section
actor or media personality who is himself a candidate shall likewise 1429 of R.A. No. 7166 requires all candidates and treasurers of
be publicly exhibited in a theater or any public forum during the registered political parties to submit a statement of all
campaign period. contributions and expenditures in connection with the
election. Section 14 is a post-audit measure that aims to
Section 9 of R.A. No. 9006 authorizes political parties and ensure that the candidates
party-list groups and independent candidates to erect _______________
common poster areas and candidates to post lawful election
29 Section 14. Statement of Contributions and Expenditures; Effect of
campaign materials in private places, with the consent of the Failure to File Statement.—Every candidate and treasurer of the political
owner thereof, and in public places or property, which are party shall, within thirty (30) days after the day of the election, file in
allocated equitably and impartially. duplicate with the offices of the Commission the full, true and itemized
statement of all contributions and expenditures in connection with the
Further, Section 1327 of R.A. No. 716628 provides for the
election.
authorized expenses of registered political parties and candi- No person elected to any public offices shall enter upon the duties of his
_______________ office until he has filed the statement of contributions and expenditures herein
required.
27 Section 13. Authorized Expenses of Candidates and Political The same prohibition shall apply if the political party which nominated
Parties.—The agreement amount that a candidate or registered political party the winning candidate fails to file the statement required herein within the
may spend for election campaign shall be as follows: period prescribed by this Act.
For candidates. — Ten pesos (P10.00) for President and Vice President; Except candidates for elective barangay office, failure to file the
and for other candidates Three Pesos (P3.00) for every voter currently statements or reports in connection with electoral contributions and
registered in the constituency where he filed his certificate of expenditures are required herein shall constitute an administrative offense
candidacy: Provided, That a candidate without any political party and without for which the offenders shall be liable to pay an administrative fine ranging
from One thousand pesos (P1,000.00) to Thirty thousand pesos (P30,000.00), they have no right to force their message upon an audience
in the discretion of the Commission.
incapable of declining to receive it.
The fine shall be paid within thirty (30) days from receipt of notice of such
failure; otherwise, it shall be enforceable by a writ of execution issued by the The COMELEC’s claim is untenable.
Commission against the properties of the offender. The captive-audience doctrine states that when a listener
It shall be the duty of every city or municipal election registrar to advise cannot, as a practical matter, escape from intrusive speech,
in writing, by personal delivery or registered mail, within five (5) days from
the date of election all candidates residing in his jurisdiction to comply with
the speech can be restricted.30 The “captive-audience” doctrine
their obligation to file their statements of contributions and expenditures. recognizes that a listener has a right not to be exposed to an
For the commission of a second or subsequent offense under this section, unwanted message in circumstances in which the
the administrative fine shall be from Two thousand pesos (P2,000.00) to Sixty communication cannot be avoided.31
thousand pesos (P60,000.00), in the discretion of the Commission. In addition, _______________
the offender shall be subject to perpetual disqualification to hold public office.
469 30 Black’s Law Dictionary, 8th edition, p. 224.
VOL. 755, APRIL 14, 2015 469 31 See Pro-Choice Network v. Project Rescue, 799 F. Supp. 1417 (W.D.N.Y.
1-United Transport Koalisyon (1-UTAK) vs. Commission on 1992).
470
Elections
470 SUPREME COURT REPORTS ANNOTATED
did not overspend in their election campaign, thereby
enforcing the grant of equal opportunity to candidates under 1-United Transport Koalisyon (1-UTAK) vs. Commission on
Section 13. Elections
A strict implementation of the foregoing provisions of law A regulation based on the captive-audience doctrine is in
would suffice to achieve the governmental interest of ensuring the guise of censorship, which undertakes selectively to shield
equal time, space, and opportunity for candidates in elections. the public from some kinds of speech on the ground that they
There is thus no necessity of still curtailing the right to free are more offensive than others. Such selective restrictions
speech of the owners of PUVs and transport terminals by have been upheld only when the speaker intrudes on the
prohibiting them from posting election campaign materials on privacy of the home or the degree of captivity makes it either
their properties. impossible or impractical for the unwilling viewer or auditor
to avoid exposure.32
Section 7(g) items (5) and (6) In Consolidated Edison Co. v. Public Service
of Resolution No. 9615 are not Commission,33 the Supreme Court of the United States of
justified under the captive- America (U.S. Supreme Court) struck down the order of New
audience doctrine. York Public Service Commission, which prohibits public
utility companies from including inserts in monthly bills
The COMELEC further points out that PUVs and discussing controversial issues of public policy. The U.S.
transport terminals hold a “captive audience” — commuters Supreme Court held that “[t]he prohibition cannot be justified
who have no choice but be subjected to the blare of political as being necessary to avoid forcing appellant’s views on a
propaganda. The COMELEC further claims that while captive audience, since customers may escape exposure to
owners of privately owned PUVs and transport terminals objectionable material simply by throwing the bill insert into
have a right to express their views to those who wish to listen, a wastebasket.”34
Similarly, in Erznoznik v. City of Jacksonville,35 the U.S. to read the election campaign materials posted on PUVs and
Supreme Court nullified a city ordinance, which made it a transport terminals. Nor are they incapable of declining to
public nuisance and a punishable offense for a drive-in movie receive the messages contained in the posted election
theater to exhibit films containing nudity, when the screen is campaign materials since they may simply avert their eyes if
visible from a public street or place. The U.S. Supreme Court they find the same unbearably intrusive.
opined that the degree of captivity is not so great as to make The COMELEC, in insisting that it has the right to restrict
it impracticable for an unwilling viewer to avoid exposure, the posting of election campaign materials on PUVs and
thus: transport terminals, cites Lehman v. City of Shaker
The Jacksonville ordinance discriminates among movies solely Heights,37 a case decided by the U.S. Supreme Court.
on the basis of content. Its effect is to deter drive-in theaters from In Lehman, a policy of the city government, which prohibits
showing movies containing any nudity, however innocent or even political advertisements on government-run buses, was
educational. This discrimination cannot be justified as a means of upheld by the U.S. Supreme Court. The U.S. Supreme Court
preventing
held that the advertising space on the buses was not a public
_______________
forum, pointing out that advertisement space on government-
32 See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975). run buses, “although incidental to the provision of public
33 447 U.S. 530 (1980). transportation, is a part of commercial venture.”38 In the same
34 Id., at pp. 530-531.
way that other commercial ventures need not accept every
35 Erznoznik v. City of Jacksonville, supra.
471 proffer of advertis-
_______________
VOL. 755, APRIL 14, 2015 471
1-United Transport Koalisyon (1-UTAK) vs. Commission on 36 Id., at p. 212.
Elections 37 418 U.S. 298 (1974).
significant intrusions on privacy. The ordinance seeks only to 38 Id., at p. 303.
472
keep these films from being seen from public streets and places
where the offended viewer readily can avert his eyes. In short, the 472 SUPREME COURT REPORTS ANNOTATED
screen of a drive-in theater is not “so obtrusive as to make 1-United Transport Koalisyon (1-UTAK) vs. Commission on
it impossible for an unwilling individual to avoid exposure Elections
to it.” x x x Thus, we conclude that the limited privacy interest of ing from the general public, the city’s transit system has
persons on the public streets cannot justify this censorship of the discretion on the type of advertising that may be displayed
otherwise protected speech on the basis of its content.36 (Emphasis on its vehicles.
ours) Concurring in the judgment, Justice Douglas opined that
while Lehman, a candidate for state office who sought to avail
Thus, a government regulation based on the captive- himself of advertising space on government-run buses,
audience doctrine may not be justified if the supposed “captive “clearly has a right to express his views to those who wish to
audience” may avoid exposure to the otherwise intrusive listen, he has no right to force his message upon an audience
speech. The prohibition under Section 7(g) items (5) and (6) of incapable of declining to receive it.”39 Justice Douglas
Resolution No. 9615 is not justified under the captive- concluded: “the right of the commuters to be free from forced
audience doctrine; the commuters are not forced or compelled intrusions on their privacy precludes the city from
transforming its vehicles of public transportation into forums terminals on the advertisements that may be posted on their
for the dissemination of ideas upon this captive audience.”40 properties.
The COMELEC’s reliance on Lehman is utterly misplaced. Also, the city government in Lehman had the right, nay the
In Lehman, the political advertisement was intended for duty, to refuse political advertisements on their buses.
PUVs owned by the city government; the city government, as Considering that what were involved were facilities owned by
owner of the buses, had the right to decide which type of the city government, impartiality, or the appearance thereof,
advertisements would be placed on its buses. The U.S. was a necessity. In the instant case, the ownership of PUVs
Supreme Court gave primacy to the city government’s and transport terminals remains private; there exists no valid
exercise of its managerial decision, viz.: reason to suppress their political views by proscribing the
Revenue earned from long-term commercial advertising could be posting of election campaign materials on their properties.
jeopardized by a requirement that short-term candidacy or issue-
oriented advertisements be displayed on car cards. Users would be Prohibiting owners of PUVs and
subjected to the blare of political propaganda. There could be transport terminals from posting
lurking doubts about favoritism, and sticky administrative
election campaign materials vio-
problems might arise in parceling out limited space to eager
lates the equal protection clause.
politicians. In these circumstances, the managerial decision
to limit car card space to innocuous and less controversial
commercial and service-oriented advertising does not rise Section 7(g) items (5) and (6) of Resolution No. 9615 do not
to the dignity of First Amendment violation. Were we to hold only run afoul of the free speech clause, but also of the equal
to the contrary, display cases in public hospitals, libraries, office protection clause. One of the basic principles on which this
buildings, military government was founded is that of the equality of right, which
_______________ is embodied in Section 1, Article III of the 1987
Constitution.42 “Equal protection requires that all persons or
39 Id., at p. 307.
40 Id. things similarly situated should be treated alike, both as to
473 rights conferred
VOL. 755, APRIL 14, 2015 473 _______________
1-United Transport Koalisyon (1-UTAK) vs. Commission on 41 Id., at p. 304.
Elections 42 Philippine Judges Association v. Prado, G.R. No. 105371, November
11, 1993, 227 SCRA 703, 711.
compounds, and other public facilities immediately would 474
become Hyde Parks open to every would be pamphleteer and 474 SUPREME COURT REPORTS ANNOTATED
politician. This the Constitution does not require.41 (Emphasis ours) 1-United Transport Koalisyon (1-UTAK) vs. Commission on
Elections
Lehman actually upholds the freedom of the owner of the and responsibilities imposed. Similar subjects, in other
utility vehicles, i.e., the city government, in choosing the types words, should not be treated differently, so as to give undue
of advertisements that would be placed on its properties. In favor to some and unjustly discriminate against others.”43
stark contrast, Section 7(g) items (5) and (6) of Resolution No. “The equal protection clause is aimed at all official state
9615 curtail the choice of the owners of PUVs and transport actions, not just those of the legislature. Its inhibitions cover
all the departments of the government including the political constitutionally impermissible since it is not based on
and executive departments, and extend to all actions of a state substantial distinction and is not germane to the purpose of
denying equal protection of the laws, through whatever the law.
agency or whatever guise is taken.”44 A distinction exists between PUVs and transport terminals
Nevertheless, the guaranty of equal protection of the laws and private vehicles and other properties in that the former,
is not a guaranty of equality in the application of the laws to to be considered as such, needs to secure from the government
all citizens of the state. Equality of operation of statutes does either a franchise or a permit to operate. Nevertheless, as
not mean their indiscriminate operation on persons merely as pointed out earlier, the prohibition imposed under Section
such, but on persons according to the circumstances 7(g) items (5) and (6) of Resolution No. 9615 regulates the
surrounding them. It guarantees equality, not identity of ownership per se of the PUV and transport terminals; the
rights. The Constitution does not require that things, which prohibition does not in any manner affect the franchise or
are different in fact, be treated in law as though they were the permit to operate of the PUV and transport terminals.
same. The equal protection clause does not forbid As regards ownership, there is no substantial distinction
discrimination as to things that are different.45 between owners of PUVs and transport terminals and owners
In order that there can be valid classification so that a of private vehicles and other properties. As already explained,
discriminatory governmental act may pass the constitutional the ownership of PUVs and transport terminals, though made
norm of equal protection, it is necessary that the four available for use by the public, remains private. If owners of
requisites of valid classification be complied with, namely: (1) private vehicles and other properties are allowed to express
it must be based upon substantial distinctions; (2) it must be their political ideas and opinion by posting election campaign
germane to the purposes of the law; (3) it must not be limited materials on their properties, there is no cogent reason to
to existing conditions only; and (4) it must apply equally to all deny the same preferred right to owners of PUVs and
members of the class.46 transport terminals. In terms of ownership, the distinction
_______________ between owners of PUVs and transport terminals and owners
of private vehicles and properties is merely superficial.
43 City of Manila v. Laguio, Jr., 495 Phil. 289, 326; 455 SCRA 308, 347
(2005). Superficial differences do not make for a valid classification.47
44 Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, The fact that PUVs and transport terminals are made
459; 637 SCRA 78, 167-168 (2010). available for use by the public is likewise not substantial
45 See Central Bank Employees Association, Inc. v. Bangko Sentral ng
justification to set them apart from private vehicles and other
Pilipinas, G.R. No. 148208, December 15, 2004, 446 SCRA 299.
46 Quinto v. COMELEC, 621 Phil. 236, 273; 606 SCRA 258, 291 (2009). properties. Admittedly, any election campaign material that
475 would be posted on PUVs and transport terminals would be
VOL. 755, APRIL 14, 2015 475 seen by many people. However, election campaign materials
1-United Transport Koalisyon (1-UTAK) vs. Commission on _______________
Elections 47 Cruz, Constitutional Law, 2003 ed., p. 128.
It is conceded that the classification under Section 7(g) 476
items (5) and (6) of Resolution No. 9615 is not limited to 476 SUPREME COURT REPORTS ANNOTATED
existing conditions and applies equally to the members of the 1-United Transport Koalisyon (1-UTAK) vs. Commission on
purported class. However, the classification remains Elections
posted on private vehicles and other places frequented by VOL. 755, APRIL 14, 2015 477
the public, e.g., commercial establishments, would also be 1-United Transport Koalisyon (1-UTAK) vs. Commission on
seen by many people. Thus, there is no reason to single out Elections
owners of PUVs and transport terminals in the prohibition and (6), in relation to Section 7(f), of Resolution No. 9615
against posting of election campaign materials. issued by the Commission on Elections are hereby
Further, classifying owners of PUVs and transport declared NULL and VOID for being repugnant to Sections 1
terminals apart from owners of private vehicles and other and 4, Article III of the 1987 Constitution.
properties bears no relation to the stated purpose of Section SO ORDERED.
7(g) items (5) and (6) of Resolution No. 9615, i.e., to provide Sereno (CJ.), Carpio, Brion, Peralta, Bersamin, Del
equal time, space and opportunity to candidates in elections. Castillo, Perez, Mendoza, Perlas-Bernabe and Leonen, JJ.,
To stress, PUVs and transport terminals are private concur.
properties. Indeed, the nexus between the restriction on the Velasco, Jr., J., No part.
freedom of expression of owners of PUVs and transport Leonardo-De Castro, J., On Official Leave.
terminals and the government’s interest in ensuring equal Villarama, Jr., J., On Official Leave.
time, space, and opportunity for candidates in elections was Jardeleza, J., No part.
not established by the COMELEC. Petition granted.
In sum, Section 7(g) items (5) and (6), in relation to Section Notes.—A governmental action that restricts freedom of
7(f), of Resolution No. 9615 violate the free speech clause; they speech or of the press based on content is given the
are content-neutral regulations, which are not within the strictest scrutiny in light of its inherent and invasive impact,
constitutional power of the COMELEC issue and are not and only when the challenged act has overcome the clear and
necessary to further the objective of ensuring equal time, present danger rule will it pass constitutional muster, with
space and opportunity to the candidates. They are not only the government having the burden of overcoming the
repugnant to the free speech clause, but are also violative of presumed unconstitutionality. (Chavez vs. Gonzales, 545
the equal protection clause, as there is no substantial SCRA 441 [2008])
distinction between owners of PUVs and transport terminals Equal protection of the law is a guarantee that persons
and owners of private vehicles and other properties. under like circumstances and falling within the same class are
On a final note, it bears stressing that the freedom to treated alike, in terms of “privileges conferred and liabilities
advertise one’s political candidacy is clearly a significant part enforced.” (Sameer Overseas Placement Agency, Inc. vs.
of our freedom of expression. A restriction on this freedom Cabiles, 732 SCRA 22 [2014])
without rhyme or reason is a violation of the most valuable ——o0o——
feature of the democratic way of life.48 © Copyright 2018 Central Book Supply, Inc. All rights reserved.
WHEREFORE, in light of the foregoing disquisitions, the
instant petition is hereby GRANTED. Section 7(g) items (5)
_______________

48 J. Paras, Dissenting Opinion, National Press Club v.


COMELEC, supra note 18 at p. 43.
477

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