EN BANC
G.R. No. 223705, August 14, 2019
LOIDA NICOLAS-LEWIS, PETITIONER, v. COMMISSION ON ELECTIONS, RESPONDENT.
D E C I S I O N
REYES, J. JR., J.:
On grounds of violation of the freedom of speech, of expression, and of assembly; denial of substantive due process; violation of the equal protection clause; and violation of the territoriality principle in criminal cases, Loida Nicolas-Lewis (petitioner) seeks to declare as unconstitutional Section 36.8 of Republic Act (R.A.) No. 9189, as amended by R.A. No. 105901 and Section 74(II)(8) of the Commission on Elections (COMELEC) Resolution No. 10035,2 which prohibit the engagement of any person in partisan political activities abroad during the 30-day overseas voting period.
SEC. 36. Prohibited Acts. - In addition to the prohibited acts provided by law, it shall be unlawful:On January 13, 2016, the COMELEC promulgated Resolution No. 10035 entitled "General Instructions for the Special Board of Election Inspectors and Special Ballot Reception and Custody Group in the Conduct of Manual Voting and Counting of Votes under Republic Act No. 9189, x x x as amended by Republic Act No. 10590 for Purposes of the May 9, 2016 National and Local Elections." Section 74(II)(8), Article XVII thereof provides for the same prohibition above-cited, viz.:
x x x x
36.8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period;
x x x x
The provision of existing laws to the contrary notwithstanding, and with due regard to the Principle of Double Criminality, the prohibited acts described in this section are electoral offenses and shall be punishable in the Philippines.
Sec. 74. Election offenses/prohibited acts. -Petitioner possesses dual citizenship (Filipino and American), whose right to vote under R.A. No. 9189, as amended, or the absentee voting system, was upheld by the Court En Banc in the 2006 case of Nicolas-Lewis, v. COMELEC.4
x x x x
II. Under R.A. 9189 "Overseas Absentee Voting Act of 2003", as amended
x x x x
8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period.
x x x x
The provision of existing laws to the contrary notwithstanding, and with due regard to the Principle of Double Criminality, the prohibited acts described in this section are electoral offenses and shall be punishable in the Philippines.
x x x x
x x x [A]n actual case or controversy is one which ["]involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.["] In other words, "there must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence." According to recent jurisprudence, in the Court's exercise of its expanded jurisdiction under the 1987 Constitution, this requirement is simplified "by merely requiring a prima facie showing of grave abuse of discretion in the assailed governmental act."Relatedly, in Ifurung v. Morales,9 the Court explained that:
Corollary to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the challenged action.
[G]rave abuse of discretion arises when a lower court or tribunal patently violates the Constitution, the law, or existing jurisprudence. We have already ruled that petitions for certiorari and prohibition filed before the Court "are the remedies by which grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the [g]overnment may be determined under the Constitution," and explained that "[w]ith respect to the Court, x x x the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions, but also to set right, undo, and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the [g]overnment, even if the latter does not exercise judicial, quasi-judicial or ministerial functions."Thus, "[w]here an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right, but in fact the duty of the judiciary to settle the dispute. The question, thus, posed is judicial rather than political. The duty to adjudicate remains to assure that the supremacy of the Constitution is upheld."10
Section 79. Definitions. - x x xBasically, on its face, the questioned provision prohibits the act of campaigning for or against any candidate during the voting period abroad.
x x x x
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity.
Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.A fundamental part of this cherished freedom is the right to participate in electoral processes, which includes not only the right to vote, but also the right to express one's preference for a candidate or the right to influence others to vote or otherwise not vote for a particular candidate. This Court has always recognized that these expressions are basic and fundamental rights in a democratic polity16 as they are means to assure individual self-fulfillment, to attain the truth, to secure participation by the people in social and political decision-making, and to maintain the balance between stability and change.17
The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."27 (Emphasis supplied, citation omitted)Restraints on freedom of expression are also evaluated by either or a combination of the following theoretical tests, to wit: (a) the dangerous tendency doctrine,28 which were used in early Philippine case laws; (b) the clear and present danger rule,29 which was generally adhered to in more recent cases; and (c) the balancing of interests test,30 which was also recognized in our jurisprudence.
Given that deeply ensconced our fundamental law is the hostility against all prior restraints 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 important to stress that not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against.The paramount consideration in the analysis of the challenged provision, therefore, is the nature of the restraint on protected speech, whether it is content-based or otherwise, content-neutral. As explained in Chavez, a content-based regulation is evaluated using the clear and present danger rule, while courts will subject content-neutral restraints to intermediate scrutiny.
Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on the freedom of speech. A distinction has to be made whether the restraint is (1) a content neutral regulation, i.e., merely concerned with the incidents of speech, or one that merely controls the time, place, or manner, and under well[-]defined standards; or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. The cast of the restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach-somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner:A governmental regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest.On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint will be struck down.
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about - especially the gravity and the imminence of the threatened harm - otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality already on ground." As formulated, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."
The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression.
Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken.
Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. (Emphasis supplied, citations omitted)32
What is more, while Section 64 thereof provides for specific rules on campaigning, it absolutely prohibits engagement in partisan political activities within our jurisdiction (embassies, consulates, and other foreign service establishments), not only during the voting period, but even during the campaign period, or simply during the entire election period, viz.:RULE 15
CAMPAIGNING ABROAD
ART. 63. Regulation on campaigning abroad. - The use of campaign materials, as well as the limits on campaign spending shall be governed by the laws and regulations applicable in the Philippines and subject to the limitations imposed by laws of the host country, if applicable.
Personal campaigning of candidates shall be subject to the laws of the host country.
All forms of campaigning within the thirty (30)[-]day voting period shall be prohibited. (Emphasis supplied)
ART. 64. Specific rules on campaigning. - The following rules shall apply during the campaign period, including the day of the election:By banning partisan political activities or campaigning even during the campaign period within embassies, consulates, and other foreign service establishments, regardless of whether it applies only to candidates or whether the prohibition extends to private persons, it goes beyond the objective of maintaining order during the voting period and ensuring a credible election. To be sure, there cart be no legally acceptable justification, whether measured against the strictest scrutiny or the most lenient review, to absolutely or unqualifiedly disallow one to campaign within our jurisdiction during the campaign period.
1) The "port courtesies" that embassies, consulates and other foreign service establishments may extend to candidates shall not go beyond welcoming them at the airport and providing them with briefing materials about the host country, and shall at all times be subject to the availability of the personnel and funding for these activities.
2) The embassies, consulates and other foreign service establishments shall continue to assist candidates engaged in official Philippine government activities at the host country and in making the representations with the host government.
3) Members of the Foreign Service Corps may attend public social/civic/religious affairs where candidates may also be present, provided that these officers and employees do not take part in the solicitation of votes and do not express public support for candidates.
4) While nothing in the Overseas Voting Act of 2003 as amended shall be deemed to prohibit free discussion regarding politics or candidates for public office, members of the Foreign Service Corps cannot publicly endorse any candidate or political party nor take part in activities involving such public endorsement.
5) No partisan political activity shall be allowed within the premises of the embassy, consulate and other foreign service establishment.
6) Government-sponsored or permitted information dissemination activities shall be strictly non-partisan and cannot be conducted where a candidate is present.
7) A Member of the Foreign Service Corps cannot be asked to directly organize any meeting in behalf of a party or candidate, or assist in organizing or act as liaison in organizing any such meeting. The prohibition shall apply to all meetings - social, civic, religious meetings - where a candidate is present. (Emphases supplied)
When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.WHEREFORE, premises considered, the petition is GRANTED. The Court declares Section 36.8 of Republic Act No. 9189, as amended by Republic Act No. 10590 as UNCONSTITUTIONAL. The temporary restraining order issued by this Court on April 19, 2016 is hereby made PERMANENT and its application is accordingly extended within Philippine Embassies, Consulates, and other posts where overseas voters may exercise their right to vote pursuant to the Overseas Voting System.
Very truly yours, (SGD) EDGAR O. ARICHETA Clerk of Court |
Endnotes:
1 Approved on May 27, 2013.
2 Promulgated on January 13, 2016.
3 Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. x x x.
4Nicolas-Lewis v. COMELEC, 529 Phil. 642 (2006).
5Rollo, p. 8.
6 Id. 94-95.
7Peralta v. Philippine Postal Corporation,G.R. No. 223395, December 4, 2018; Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374, 438 (2010).
8 G.R. No. 225442, August 8, 2017, 835 SCRA 350, 385.
9 G.R. No. 232131, April 24, 2018.
10 Id.
11Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, supra note 8, at 385-386.
12Gonzales v. COMELEC, 137 Phil. 471 (1969).
13Estipona, Jr. v. Judge Lobrigo, G.R. No. 226679,August 15, 2017, 837 SCRA 160, 171.
14 Id.
15Chavez v. Gonzales, 569 Phil. 155, 195 (2008).
16The Diocese of Bacolod v. COMELEC, 751 Phil. 301, 444 (2015), citing National Press Club v. COMELEC, 283 Phil. 795, 810 (1992).
17ABS-CBN Broadcasting Corporation v. COMELEC, 380 Phil. 780, 792 (2000).
18Mutuc v. COMELEC, 146 Phil. 798, 805-806 (1970).
19 758 Phil. 67 (2015).
20BAYAN v. Ermita, 522 Phil. 201, 224 (2006), citing Reyes v. Bagatsing, 210 Phil. 457, 467 (1983).
21 Id.
22Disini v. The Secretary of Justice, 727 Phil. 28, 121 (2014).
23Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, 488 (2010).
24Estrada v. Sandiganbayan, 421 Phil. 290, 355 (2001).
25David v. Macapagal-Arroyo, 522 Phil. 705, 726 (2006).
26Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 23, at 489.
27 Id. at 485-486.
28 This test permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; Chavez v. Gonzales, supra note 15, at 200.
29 This rule rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent; Chavez v. Gonzales, id.
30 This is used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation; Chavez v. Gonzales, id.
31 Supra note 15.
32 Id. at 204-208.
331-United Transport Koalisyon (1-UTAK) v. COMELEC, supra note 19, at 84.
34See Police Department of City of Chicago v. Mosley, 408 U.S. 92, 96 (1972), wherein the U.S. Supreme Court held that the government may not grant a forum to acceptable views yet deny it from those who "express less favored or more controversial views." https://supreme.justia.com/cases/federal/us/408/92/ (visited August 9, 2019).
35See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989 https://supreme.justia.com/cases/federal/us/491/781/ (visited August 9, 2019).
36 Supra note 16.
371-United Transport Koalisyon (1-UTAK) v. COMELEC, supra note 19.
38Chavez v. Gonzales, supra note 15.
39Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571, 588 (2001).
40The Diocese of Bacolod v. COMELEC, supra note 16, at 381.
41Social Weather Stations, Inc. v. COMELEC, supra at 590.
42Gutierrez v. The House of Representatives Committee on Justice, 658 Phil. 322, 382 (2011).
43Philippine Consumers Foundation, Inc. v. National Telecommunications Commission, 216 Phil. 185, 195 (1984).
44 Supra note 16.
45 Promulgated on January 15, 2014.
46Disini v. The Secretary of Justice, supra note 22.
47ABS-CBN Broadcasting Corporation v. COMELEC, supra note 17.
48 G.R. No. 103956, March 31, 1992, 207 SCRA 712, 717.
PERLAS-BERNABE, J.:
At the onset, I concur that Section 36.8 of Republic Act No. (RA) 9189,1 as amended by RA 105902 (Section 36.8), is a content-neutral regulation, for which the intermediate scrutiny test should be made to apply.3 The said provision reads:
Section 36. Prohibited Acts. - In addition to the prohibited acts provided by law, it shall be unlawful:The distinction between content-neutral and content-based regulations is well-settled in our jurisprudence. In Newsounds Broadcasting Network Inc. v. Dy:4
x x x x
36.8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period[.] (Emphasis supplied)
[J]urisprudence distinguishes between a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards; and a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech.5 (Emphases supplied)In Ward v. Rock Against Racism,6 the Supreme Court of the United States of America stated that the principal inquiry in determining content-neutrality is whether the government has adopted such regulation "because of disagreement with the message it conveys."7
If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content neutral restraint is a restraint which regulates the time, place or manner of the expression in public places without any restraint on the content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny.Following the intermediate scrutiny approach, a content-neutral regulation is valid if it meets these parameters: (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on freedoms of speech, expression, and press is no greater than what is essential to the furtherance of that interest.12 In relation to the fourth element, a restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. In other words, the regulation must be "narrowly tailored" to fit the regulation's purpose.13 In my view, Section 36.8 fails to satisfy this fourth parameter of the intermediate scrutiny approach,14 and hence, unconstitutional for the reasons explained below.
An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. Courts will uphold time, place or manner restraints if they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression.11 (Emphases and underscoring supplied)
Endnotes:
1 Entitled "AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES," otherwise known as "THE OVERSEAS ABSENTEE VOTING ACT OF 2003," approved on February 13, 2003.
2 Entitled "AN ACT AMENDING REPUBLIC ACT NO. 9189, ENTITLED 'AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES.'" otherwise known as "THE OVERSEAS VOTING ACT OF 2013," approved on May 27, 2013.
3 See ponencia, pp. 12-13.
4 602 Phil. 255 (2009).
5 Id. at 271.
6 491 U.S. 781 (1989).
7 See id. See also Police Department of City of Chicago v. Mosley, 408 U.S. 92 (1972), wherein the Supreme Court of the United States of America held that government may not grant a forum to acceptable views yet deny it from those who "express less favored or more controversial views."
8 See Separate Concurring Opinion of Senior Associate Justice Antonio T. Carpio in Chavez v. Gonzales.
9 569 Phil. 155, 238 (2008). Id.
10 Id.
11 Id. at 238.
12 See ponencia in Chavez v. Gonzales, id. at 205-206; citing Osmeña v. COMELEC, 351 Phil. 692, 717 (1998).
13 See Chavez v. Gonzales, id. at 210 and 238; emphasis supplied. See also Ward v. Rock Against Racism, supra note 6.
14 In Gonzales v. COMELEC, the Court held that "even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved," as in this case. Indeed, "precision of regulation is the touchstone in an area so closely related to our most precious freedoms." (137 Phil. 471, 507 [1969]; emphases supplied)
15 Dated April 23, 2016.
16 See Comment, p. 29.
17 See id. at 21.
18 Emphasis and underscoring supplied.
19Naval v. COMELEC, 738 Phil. 506, 535 (2014).
20 See Comment, p. 21.
21 See COMELEC Resolution No. 9843, entitled "IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 10590, OTHERWISE KNOWN AS 'AN ACT AMENDING REPUBLIC ACT NO. 9189, ENTITLED 'AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES,''" otherwise known as "THE RULES AND REGULATIONS IMPLEMENTING THE OVERSEAS VOTING ACT OF 2003, As AMENDED," approved on January 15, 2014.
22 See Dissenting Opinion of Retired Associate Justice Dante O. Tinga in Spouses Romualdez v. COMELEC, 576 Phil. 357, 433 (2008).
23 751 Phil. 301 (2015).
24 Id. at 343, citing Senior Associate Justice Antonio T. Carpio's Separate Concurring Opinion in Chavez v. Gonzales, supra note 8, at 245.
25The Diocese of Bacolod v. COMELEC; id. at 343.
LEONEN, J.:
I concur in the result. Nonetheless, I maintain that the provisions in question should be stricken down as they are forms of prior restraint and content-based illicit prohibition on the exercise of the primordial right to freedom of expression.
During elections, active deliberations prompted by the exercise of the freedoms of speech, expression, and association of the electorate itself should remain untrammeled. Our assurance of authentic democracy depends on safe spaces for vigorous discussion. The provisions in question do the exact opposite. Curtailing political speech during the elections is presumptively unconstitutional.
The very first section in the Declaration of Principles and State Policies of the Constitution states:
SECTION 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all authority emanates from them.The electoral exercise is a significant forum for the sovereign. It is during this time that the primordial and fundamental protection for the speech of every voter and every citizen is most sacred. It is this type of political speech that lies at the core of the guarantee of freedom of expression in Article III, Section 4 of the Constitution.
SECTION 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the for redress of grievances.This essential right springs from the constitutional touchstone that "[s]overeignty resides in the people and all authority emanates from them."4 This is why the extent of freedom of expression is broad. It protects almost all media of communication, whether verbal, written, or through assembly. The protection conferred is not limited to a field of interest; it does not regard whether the cause is political or social, or whether it is conventional or unorthodox.5
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.The framing of the Malolos Constitution, while copied from the Spanish Constitution, should be understood in view of the country's inadequate protection to free speech during the Spanish rule.6 At that time, there was an increasing demand for reforms for free speech and free press.7 Apparent from the text is that the protection to free speech clause is tightly interweaved with a guaranteed free press, as the printing press was the main medium through which free speech was exercised then.
The interest of civilized society and the maintenance of good demand a full and free discussion of all affairs of public interest. Complete liberty to comment upon the administration of Government, as well as the conduct of public men, is necessary for free speech. The people are not obliged, under modem civilized governments, to speak of the conduct of their officials, their servants, in whispers or with bated breath.The right to free speech was accorded constitutional protection in the 1935 Constitution, and eventually, the 1973 Constitution, which retained the same wording of the free speech clause:
The right to assemble and petition the Government, and to make requests and demands upon public officials, is a necessary consequence of republican and democratic institutions, and the complement of the right of free speech.18 (Citations omitted)
No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.Free speech has since enjoyed a preferred position in the scheme of our constitutional values.19 In Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Company, Inc.:20
Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs - political, economic or otherwise.Free speech was accorded with even greater protection and wider coverage with the enactment of the 1987 Constitution, which added the more expansive word "expression" in the free speech clause.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such priority "gives these liberties the sanctity and the sanction not permitting dubious intrusions."21
[T]he vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change. As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open.27 (Citations omitted)Further, in The Diocese of Bacolod v. Commission of Elections:28
In a democracy, the citizen's right to freely participate in the exchange of ideas in furtherance of political decision-making is recognized. It deserves the highest protection the courts may provide, as public participation in nation-building is a fundamental principle in our Constitution. As such, their right to engage in free expression of ideas must be given immediate protection by this court.29Freedom of expression, as with other cognate constitutional rights, is essential to citizens' participation in a meaningful democracy. Through it, they can participate in public affairs and convey their beliefs and opinion to the public and to the government.30 Ideas are developed and arguments are refined through public discourse. Freedom of expression grants the people "the dignity of individual thought."31 When they speak their innermost thoughts, they take their place in society as productive citizens.32 Through the lens of self-government, free speech guarantees an "ample opportunity for citizens to determine, debate, and resolve public issues."33
Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue is a critical, and indeed defining, feature of a good polity." This theory may be considered broad, but it definitely "includes [a] collective decision making with the participation of all who will be affected by the decision." It anchors on the principle that the cornerstone of every democracy is that sovereignty resides in the people. To ensure order in running the state's affairs, sovereign powers were delegated and individuals would be elected or nominated in key positions to represent the people. On this note, the theory on deliberative democracy may evolve to the right of the people to make accountable. Necessarily, this includes the right of the people to criticize acts made pursuant to governmental functions.36 (Citations omitted)Speech with political consequences occupies a higher position in the hierarchy of protected speeches and is conferred with a greater degree of protection. The difference in the treatment lies in the varying interests in each type of speech. Nevertheless, the exercise of freedom of speech may be regulated by the State pursuant to its sovereign police power. In prescribing regulations, distinctions are made depending on the nature of the speech involved. In Chavez:
Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech.37 (Citations omitted)This Court recognized in The Diocese of Bacolod that political speech occupies a preferred rank within our constitutional order, it being a direct exercise of the sovereignty of the people.38 In a separate opinion in Chavez, Associate Justice Antonio Carpio underscored that "if ever there is a hierarchy of protected expressions, political expression would occupy the highest rank[.]"39
Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the contours of power whether through the election of representatives in a republican or the revision of the basic text of the Constitution. The· zeal with which we protect this kind of speech does not depend on our evaluation of the cogency of the message. Neither do we assess whether we should protect speech based on the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the quality of deliberation in our democratic society.45Media law professor Eric Barendt explained it succinctly in his book, Freedom of Speech:
To confine freedom of expression to political speech (or at any rate to protect it most rigorously in this context) does reduce the scale of the difficulty. Political speech is immune from restriction, because it is a dialogue between members of the electorate and between governors and governed, and is, therefore, conducive, rather than inimical, to the operation of a constitutional democracy. The same is not so obviously true of other categories of 'speech', for which the protection of the free speech may be claimed-pornography or commercial advertising.46Philosopher and free speech advocate Alexander Meiklejohn similarly forwarded this thesis in arguing "that the principle of freedom of speech was rooted in principles of self-government, and that there should be absolute protection for the discussion of public issues, but considerably less protection for speech that did not discuss issues of public interest."47
The rights of free expression and free exercise of religion occupy a unique and special place in our constellation of civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a form of prior restraint is anathema to a society which places high significance to these values.49Prior restraint is an official governmental restriction on any form of expression in advance of its actual utterance, dissemination, or publication. Thus, freedom from prior restraint is freedom from censorship, regardless of its form and the branch of that wielded it. When a governmental act is in prior restraint of expression, it bears a heavy presumption against its validity.50 In Chavez:
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from 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. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.51 (Citations omitted)On the other hand, subsequent punishment is the imposition of liability on the individual exercising his or her freedom. The penalty may be penal, civil, or administrative.52
The [clear and present danger test], as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. And this evil is primarily the "disorderly and unfair administration of justice." This test establishes a definite rule in constitutional law. provides the criterion as to what words may be published. Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such advocacy will harm the administration of justice.As its designation connotes, the clear and present danger test demands that the danger not only be clear, but also present. In contrast, the dangerous tendency test does not require that the danger be present. In In Re: Gonzales:59
. . . .
The question in every case, according to Justice Holmes, is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree.
The "dangerous tendency" rule, on the other hand, has been adopted in cases where extreme difficulty is confronted in determining where the freedom of expression ends and the right of courts to protect their independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt.
This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.58 (Citations omitted)
The term clear seems to point to a causal connection with the danger of the substantive evil arising from the utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable.60The clear and present danger test has undergone changes from its inception in Schenck v. U.S.,61 where it was applied to speeches espousing anti- action.62
By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, - even more so than on the other departments - rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously (sic) termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they db precedence and primacy.69This standard was applied in the recent case of Chavez:
[T]he clear and present danger rule . . . rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, "extremely serious and the degree of imminence extremely high."70 (Citations omitted)In ABS-CBN Broadcasting Corporation v. Commission on Elections,71 this Court explained that to justify a restriction on expression, a substantial interest must be clearly shown:
In cases involving expression that strengthens suffrage, all the more should freedom of expression be protected and upheld.73 It is the government's interest that the sanctity and integrity of the electoral process are preserved and the right to vote is protected by providing safe and accessible areas for voting and campaigning. However, to uphold a restriction, the governmental interest must outweigh the people's freedom of expression.74A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, when the end can be more narrowly achieved.72 (Citations omitted)
The test is very rigid because it is the communicative impact of the speech that is being regulated. The regulation goes into the heart of the rationale for the right to free speech; that is, that there should be no prohibition of speech merely because public officials disapprove of the speaker's views. Instead, there should be a free trade in the marketplace of ideas, and only when the harm caused by the speech cannot be cured by more speech can the bar the expression of ideas.83 (Emphasis supplied, citation omitted)In Newsounds Broadcasting Network, Inc. v. Dy:84
The immediate implication of the application of the "strict scrutiny" test is that the burden falls upon respondents as agents of to prove that their actions do not infringe upon petitioners' constitutional rights. As content regulation cannot be done in the absence of any compelling reason, the burden lies with the to establish such compelling reason to infringe the right to free expression.85While content-based regulations are "treated as more suspect than content-neutral"86 regulations due to discrimination in regulating the expression, content-neutral regulations are subject to "lesser but still heightened scrutiny."87
"[S]peech serves one of its greatest public purposes in the context of elections when the free exercise thereof informs the people what the issues are, and who are supporting what issues." At the heart of democracy is every advocate's right to make known what the people need to know, while the meaningful exercise of one's right of suffrage includes the right of every voter to know what they need to know in order to make their choice.94 (Citations omitted)During the election period, citizens seek information on candidates and campaigns and, upon reaching a choice, campaign and persuade other people to likewise vote for their candidate. At this time, people are most engaged in political discourse. Expressing a political ideology and campaigning for a candidate cannot be divorced from one's right of suffrage. Even electoral candidates rely on their supporters to campaign for them. Thus, any speech or act that directly involves the right of suffrage is a political activity by the people themselves.
Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate.In Social Weather Stations, Inc., this Court considered the parameters within which a regulation may be held valid:
This does not mean that there cannot be a specie of speech by a private citizen which will not amount to an election paraphernalia to be validly regulated by law.96
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech cf persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of.free expression, and (d) demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content.97 (Emphasis in the original)Here, petitioner Loida Nicolas-Lewis assails the constitutionality and validity of Section 36.8 of the Overseas Absentee Voting Act and Section 74(II)(8) of Commission on Elections Resolution No. 10035. These are uniform provisions that prohibit partisan political activities abroad during the 30-day overseas voting period.98
SECTION 36. Prohibited Acts. - In addition to the prohibited acts provided by law, it shall be unlawful:Section 74(II)(8) of the Commission on Elections Resolution No. 10035 states:
. . . .
36.8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period[.]
Sec. 74. Election offenses / prohibited acts. -The definition of "partisan political activity" is found in Section 79(b) of Batas Pambansa Blg. 881, or the Omnibus Election Code. It states:
II. Under R.A. 9189 "Overseas Absentee Voting Act of 2003", as amended
. . . .
(8) For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period.
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:From this, it can easily be determined that the assailed provisions are content-based regulations precisely because they specifically target a kind of speech identified by its political element. Contrary to respondent's submission,99 the assailed provisions are not content-neutral. While they seem to merely limit the time allowed in conducting partisan political activities, they should be evaluated without losing sight of the nature of the expression they seek to regulate.(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity.
Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.
This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising from the too-early nomination of candidates and the necessarily prolonged political campaigns. The direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that violence and even death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further magnified.Under the police power then, with its concern for the general welfare and with the commendable aim of safeguarding the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to believe that without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and nullified.110
[T]he realities of Philippine politics in 1969 and four decades after remain the same - the unbridled passions of supporters and candidates alike have, in the recent years, even resulted, in some of the most horrendous and unforgivable atrocities. . . .Moreover, respondent asserts that the provisions are narrowly tailored to meet their objective of enhancing the opportunity of all candidates to be heard. Respondent construes the provisions in conjunction with Section 261 of the Omnibus Election Code, which provides:
. . . With that, the regulation, through the prohibition of partisan political activity during the day or days that votes are cast, is not only reasonable, but warranted as well.111
SECTION 261. Prohibited Acts. - The following shall be guilty of an election offense:Accordingly, respondent notes that partisan political activities are only prohibited on the days of casting of votes and within a 30-meter radius of the polling place. The prohibition, respondent further contends, is only addressed to election candidates.112
. . . .
(k) Unlawful electioneering. - It is unlawful to solicit votes or undertake any propaganda on the day of registration before the board of election inspectors and on the day of election, for or against any candidate or any political party within the polling place and with a radius of thirty meters thereof.
. . . .
(cc) On candidacy and campaign:
. . . .
(6) Any person who solicits votes or undertakes any propaganda, on the day of election, for or against any candidate or any political party within the polling place or within a radius of thirty meters thereof.
Sec. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. - It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office.In In Re: Gonzales, this Court determined that Section 50-B of Republic Act No. 4880 is a content-based regulation because it is a limitation that cuts deep into the substance of the speech and expression. Proceeding to apply the clear and present danger test, the majority reasoned that the limits on freedom of speech is justified by the serious substantive evil that affects the electoral process. It held that the evils that the law sought to prevent are "not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied."115 It ruled:
The term 'Candidate' refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate.
The term 'Election Campaign' or 'Partisan Political Activity' refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a any candidate or party;
(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office;
(d) Publishing or distributing campaign literature or materials;
(e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party;
(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly. Provided, That simple expressions or opinion and thoughts concerning the election shall not be considered as part of an election campaign: Provided, further, That nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports.
For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members of the Court, though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not unaware of the clear and present danger that calls for measures that may bear heavily on the exercise of the cherished rights of expression, of assembly, and of association.This case, however, bears a different factual milieu. It would be a judicial error to carelessly apply the ruling in In Re: Gonzales here.
This is not to say that once such a situation is found to exist, there is no limit to the allowable limitations on such constitutional rights. The clear and present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition of such restrictions but also that they be limited in scope.116
Endnotes:
1 Republic Act No. 9189 (2003), as amended by Republic Act No. 10590 (2013), sec. 36.8 provides:
SECTION 36. Prohibited Acts. - In addition to the prohibited acts provided by law, it shall be unlawful:
. . . .
36.8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period[.]
2 General Instructions for the Special Board of Election Inspectors and Special Ballot Reception and Custody Group in the Conduct of Manual Voting and Counting of Votes Under Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" as amended by Republic Act No. 10590 for Purposes of the May 9, 2016 National and Local Elections.
3Reyes v. Bagatsing, 210 Phil. 457-465-467 (1983) [Per C.J. Fernando, En Banc].
4 CONST., art. II, sec. 1.
5Chavez v. Gonzales, 569 Phil. 155, 198 (2008) [Per C.J. Puno, En Banc].
6 George A. Malcolm, The Malolos Constitution, 36 POLITICAL SCIENCE QUARTERLY 91 (1921), available at <https://archive.org/details/jstor-2142663> (last visited on August 12, 2019).
7U.S. v. Bustos, 37 Phil. 731, 739 (1918) [Per J. Malcolm, First Division] citing Jose Rizal, Filipinas Despues de Cien Anos (The Philippines A Century Hence) (1912).
8 WILLIAM COHEN, THE FIRST AMENDMENT: CONSTITUTIONAL PROTECTION OF EXPRESSION AND CONSCIENCE 1 (2003).
9 Id. at 2.
10 Id.
11 Id.
12 Id. at 3.
13 David S. Bogen, Freedom of Speech and Origins, 42 MD. L. REV. 429, 430-431 (1983), available at <https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2503&context=mlr> (last visited on August 12, 2019) and JOSEPH J. HEMMER, COMMUNICATION LAW: THE SUPREME COURT AND THE FIRST AMENDMENT 4 (2000).
14 WILLIAM COHEN, THE FIRST AMENDMENT: CONSTITUTIONAL PROTECTION OF EXPRESSION AND CONSCIENCE 8-9 (2003). See also Masses Publishing Co v. Patten, 244 F. 535 (S.D.N.Y. 1917).
15U.S. v. Bustos, 37 Phil. 731,740 (1918) [Per J. Malcolm, First Division].
16 Id.
17 43 Phil. 58 (1922) [Per J. Johnson, En Banc].
18 Id. at 62.
19Reyes v. Bagatsing, 210 Phil. 457, 475 (1983) [Per C.J. Fernando, En Banc].
20 151-A Phil. 656 (1973) [Per J. Makasiar, First Division].
21 Id. at 676.
22See Primicias v. Fugoso, 80 Phil. 71 (1948) [Per J. Feria, En Banc]. See also EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 30-31 (1989).
23 DAVID A.J. RICHARDS, FREE SPEECH AND THE POLITICS OF IDENTITY 18 (1999).
24 Id. at 21.
25 137 Phil. 471 (1969) [Per J. Fernando, En Banc].
26 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].
27 Id. at 197.
28 751 Phil. 301 (2015) [Per J. Leonen, En Banc].
29 Id. at 332.
30 ERIC BARENDT, FREEDOM OF SPEECH 20 (1987).
31 JOSEPH J. HEMMER, JR., COMMUNICATION LAW: THE SUPREME COURT AND THE FIRST AMENDMENT 3 (2000).
32 Id.
33 Id.
34 ERIC BARENDT, FREEDOM OF SPEECH 146 (1987).
35 DAVID A.J. RICHARDS, FREE SPEECH AND THE POLITICS OF IDENTITY 18 (1999).
36The Diocese of Bacolod v. Commission of Elections, 751 Phil. 301, 360 (2015) [Per J. Leonen, En Banc].
37Chavez v. Gonzales, 569 Phil. 155, 199 (2008) [Per J. Puno, En Banc].
38The Diocese of Bacolod v. Commission of Elections, 751 Phil. 301, 343 (2015) [Per J. Leonen, En Banc].
39 Id. citing J. Carpio, Separate Concurring Opinion in Chavez v. Gonzales, 569 Phil. 155, 245 (2008) [Per J. Puno, En Banc].
40Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893, 933 (1996) [Per J. Puno, En Banc].
41 727 Phil. 28 (2014) [Per J. Abad, En Banc].
42 Id. at 110.
43See J. Leonen, Dissenting Opinion in Disini, Jr. v. Secretary of Justice, 727 Phil. 28 (2014) [Per J. Abad, En Banc].
44 Id. at 420.
45The Diocese of Bacolod v. Commission on Elections, 751 Phil. 301, 325 (2015) [Per J. Leonen, En Banc].
46 ERIC BARENDT, FREEDOM OF SPEECH 147 (1987).
47 WILLIAM COHEN, THE FIRST AMENDMENT: CONSTITUTIONAL PROTECTION OF EXPRESSION AND CONSCIENCE 41 (2003).
48 328 Phil. 893 (1996) [Per J. Puno, En Banc].
49 Id. at 953-954.
50United Transport Koalisyon v. Commission on Elections, 758 Phil. 67, 84 (2015) [Per J. Reyes, En Banc].
51Chavez v. Gonzales, 569 Phil. 155, 203-204 (2008) [Per J. Puno, En Banc].
52 J. Sandoval-Gutierrez, Concurring Opinion in Chavez v. Gonzales, 569 Phil. 155, 224 (2008) [Per J. Puno, En Banc].
53See Chavez v. Gonzales, 569 Phil. I 55 (2008) [Per J. Puno, En Banc] and Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996) [Per J. Puno, En Banc].
54 J. Sandoval-Gutierrez, Concurring Opinion in Chavez v. Gonzales, 569 Phil. 155, 240-241 (2008) [Per J. Puno, En Banc].
55Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893, 928 (1996) [Per J. Puno, En Banc].
56Primicias v. Fugoso, 80 Phil. 71,75 (1948) [Per J. Feria, En Banc].
57 102 Phil. 152 (1957) [Per J. Bautista Angelo, First Division].
58 Id. at 161-163.
59 137 Phil. 471 (1969) [Per J. Fernando, En Banc].
60 Id. at 496.
61 249 U.S. 47 (1919).
62Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893, 932 (1996) [Per J. Puno, En Banc].
63 341 U.S. 494 (1951).
64Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893, 932 (1996) [Per J. Puno, En Banc].
65 95 U.S. 444 (1969).
66Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893, 933 (1996) [Per J. Puno, En Banc].
67See footnote 33 of J. Carpio, Separate Concurring Opinion in Chavez v. Gonzales, 569 Phil. 155, 242 (2008) [Per C.J. Puno, En Banc].
68Reyes v. Bagatsing, 210 Phil. 457 (1983) [Per J. J.B.L. Reyes, En Banc].
69 Id. at 475.
70Chavez v. Gonzales, 569 Phil. 155, 200 (2008) [Per C.J. Puno, En Banc].
71 380 Phil. 780 (2000) [Per J. Panganiban, En Banc].
72 Id. at 795.
73 Id. at 795-796 citing Mutuc v. Commission on Elections, 146 Phil. 798 (1970) [Per J. Fernando, First Division].
74 Id. at 796.
75Newsounds Broadcasting Network, Inc. v. Dy, 602 Phil. 255, 271 (2009) [Per J. Tinga, Second Division].
76 Id.
77Chavez v. Gonzales, 569 Phil. 155,206 (2008) [Per J. Puno, En Banc].
78 Id. See also Ayer Productions Pty. Ltd. v. Capulong, 243 Phil. 1007 (1988) [Per J. Feliciano, En Banc].
79Chavez v. Gonzales, 569 Phil. 155, 206 (2008) [Per J. Puno, En Banc].
80Cabansag v. Fernandez, 102 Phil. 152, 163 (1957) [Per J. Bautista Angelo, First Division].
81See Divinagracia v. Consolidated Broadcasting System, Inc., 602 Phil. 625 (2009) [Per J. Tinga, Second Division].
82 605 Phil. 43 (2009) [Per J. Velasco, Jr., En Banc].
83 Id. at 163.
84 602 Phil. 255 (2009) [Per J. Tinga, Second Division].
85 Id. at 274.
86 Id. at 271 citing GUNTHER, ET AL., CONSTITUTIONAL LAW 964 (14th ed., 2001).
87 Id.
88Osmeña v. Commission on Elections, 351 Phil. 692, 718 (1998) [Per J. Mendoza, En Banc].
89 Id. at 718-719.
90Chavez v. Gonzales, 569 Phil. 155, 206 (2008) [Per J. Puno, En Banc].
91Social Weather Stations, Inc. v. Commission on Elections, 409 Phil. 571, 588 (2001) [Per J. Leonen, En Banc].
92Chavez v. Gonzales, 569 Phil. 155, 207 (2008) [Per J. Puno, En Banc].
93The Diocese of Bacolod v. Commission on Elections, 751 Phil. 301, 332 (2015) [Per J. Leonen, En Banc].
94 Id. at 372.
95 757 Phil. 483 (2015) [Per J. Leonen, En Banc].
96 Id. at 516.
97 Id. at 516-517.
98Rollo, p. 4.
99 Id. at 124.
100 Id. at 125.
101 Id.
102 Commission on Elections Resolution No. 9843 (2014), art. 89, in relation to Republic Act No. 10590 (2013), sec. 2(1).
103In re: Gonzales v. Commission on Elections, 137 Phil. 471, 506 (1969) [Per J. Fernando, En Banc].
104Rollo, p. 125.
105Chavez v. Gonzales, 569 Phil. 155, 200 (2008) [Per J. Puno, En Banc].
106Rollo, p. 124.
107 Id.
108 137 Phil. 471 (1969) [Per J.Fernando, En Banc].
109Rollo, p. 116.
110 Id. at 124-125.
111 Id. at 125.
112Rollo, p. 122.
113 Id. at 125.
114Chavez v. Gonzales, 569 Phil. 155, 200 (2008) [Per J. Puno, En Banc].
115In re: Gonzales v. Commission on Elections, 137 Phil. 471, 500 (1969) [Per J. Fernando, En Banc].
116 Id. at 503.
117Rollo, p. 117.
118 Id. at 121.
JARDELEZA, J.:
I vote to grant the petition on the ground that Section 36.81 of Republic Act No. (RA) 9189,2 as amended by RA 10590,3 and Section 74(II)(8)4 of Commission on Elections (Comelec) Resolution No. 100355 are impermissible content-based regulations. These provisions both provide that it shall be unlawful for any person to engage in partisan political activity abroad during the 30-day overseas voting period. Partisan political activity or election campaign is, in tum, defined under Section 79(b) of Batas Pambansa Bilang (BP) 8816 as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. These acts shall include:
Section 79(b) provides, at the same time, when the foregoing acts shall not be considered as election campaign or partisan political activity and these are:
- Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
- Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
- Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;
- Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or
- Directly or indirectly soliciting votes, pledges or support for or against a candidate.
[1.] x x x [I]f performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties x x x[; and]Petitioner alleges that on the basis of the above regulations, she, together with thousands of similarly situated Filipinos all over the world, was prohibited by the different Philippine Consulates from conducting information campaigns, rallies, and outreach programs in support of their respective candidates for the May 2016 national elections. Petitioner contends that these regulations violate one's freedom of speech, expression, and assembly, and are content-based prior restraints on speech which curtail the expression of political inclinations, views, and opinions of Filipinos abroad. I agree.
[2.] Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention x x x.
To be clear, the transcendental importance doctrine does not clothe us with the power to tackle factual questions and play the role of a trial court. The only circumstance when we may take cognizance of a case in the first instance, despite the presence of factual issues, is in the exercise of our constitutionally-expressed task to review the sufficiency of the factual basis of the President's proclamation of martial law under Section 18, Article VII of the 1987 Constitution. The case before us does not fall under this exception.The justiciable controversy pres1ent here involves a pure question of law. We are not being called to rule on questions of fact. This direct recourse to Us via this petition is, therefore, being allowed on this basis as well, and not on petitioner's misplaced invocation of the transcendental importance doctrine.x x x x
Accordingly, for the guidance of the bench and the bar, we reiterate that when a question before the Court involves determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental or paramount importance of the case. Such question must first be brought before the proper trial courts or the CA, both of which are specially equipped to try and resolve factual questions.12 (Citations omitted; emphasis in the original.)
x x x That is why the First Amendment expressly targets the operation of the laws-i.e., the "abridg[ement] of speech"-rather than merely I the motives of those who enacted them. U.S. Const., Amdt. 1. "'The vice of content-based legislation . . . is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.'" x x x29Furthermore, the cast of the restriction, whether content-neutral or content-based, determines the test by which the challenged act is assayed with.30 Content-based laws, which are generally treated as more suspect than content-neutral laws because of judicial concern with discrimination in the regulation of expression,31 are subject to strict scrutiny. Content-neutral regulations of speech or of expressive conduct are subject to a lesser, but still heightened scrutiny32 which is commonly referred to as an intermediate approach.33
Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:Accordingly, respondent insists that the prohibition under Section 36.8 of RA 9189, as amended by RA 10590, and Section 74(II)(8) of Comelec Resolution No. 10035 shall be taken to mean that it is confined to the polling places and to a radius of 30 meters.
x x x x
(k) Unlawful electioneering. - It is unlawful to solicit votes or undertake any propaganda on the day of registration before the board of election inspectors and on the day of election, for or against any candidate or any political party within the polling place and with a radius of thirty meters thereof.
Endnotes:
1 Sec. 36.8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period[.]
2 The Overseas Absentee Voting Act of 2003.
3 The Overseas Absentee Voting Act of 2013.
4 Sec. 74. Election offenses/prohibited acts. -5 General Instructions for the Special Board of Election Inspectors and Special Ballot Reception and Custody Group in the Conduct of Manual Voting and Counting of Votes under Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" as amended by Republic Act No. 10590 for Purposes of the May 09, 2016 National and Local Elections.x x x x
II. Under R.A. 9189 "Overseas Absentee Voting Act of 2003," as amendedx x x x
8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas voting period.
6 Omnibus Election Code of the Philippines.
7 Art. III, Sec. 4. - No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
8Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No. 225442, August 8, 2017, 835 SCRA 350, 385.
9 See SPARK v. Quezon City, id.
10SPARK v. Quezon City, supra at 386.
11 G.R. No. 217158, March 12, 2019.
12Id.
13Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, 545 SCRA 441, 491. Citation omitted.
14Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803-804 (1984), citing C.J. Burger's dissent in Metromedia, Inc. v. San Diego, 453 U.S. 490, 561 (1981).
15Id. at 804, citing Schenck v. United States, 249 U.S. 47, 52 (1919).
16 See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
17Chavez v. Gonzales, supra note 13 at 493.
18Newsounds Broadcasting Network, inc. v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009, 583 SCRA 333, 352.
19Id.
20 491 u.s. 781 (1989).
21Burson v. Freeman, 504 U.S. 191, 197 (1992). Emphasis supplied.
22Id.
23Id.
24Police Department of Chicago v. Mosley, 408 U.S. 92, 99 (1972). Emphasis supplied.
25 135 S. Ct. 2218 (2015).
26Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642-643 (1994).
27Reed v. Town of Gilbert, Arizona, supra at 2227.
28 530 U.S. 703 (2000).
29Reed v. Town of Gilbert, Arizona, supra at 2229.
30Chavez v. Gonzales, supra note 13 at 493.
31Newsounds Broadcasting Network, Inc. v. Dy, supra note 18.
32Id.
33Chavez v. Gonzales, supra note 13 at 493-494.
34Citizens United v. Federal Election Commission, 558 U.S. 310, 882 (2010).
35Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009, 582 SCRA 254, 296. Citations omitted.
36Rollo, p. 376.
37 G.R. No. L-27833, April 18, 1969, 27 SCRA 835.
38Id. at 864.
39 See Gonzales v. Comelec, supra.
40Rollo , p. 373.
41Quarterman v. Kefauver, 55 Cal.App.4th 1366, 1371 (1997).
42Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992).
43Id. at 254.
44Id.
45 See Burson v. Freeman, supra note 21 at 119-200, where the US Supreme Court said that to survive strict scrutiny, the State must do more than assert a compelling State interest, but must also demonstrate that its law is necessary to serve the asserted interest. It bears emphasis that the US Supreme Court did not categorically say that the State must adopt the least restrictive means. The measure of the restriction, however, whether it should be the least or whether it being less/necessary would suffice---is a discussion best left in another appropriate case.
46SPARK v. Quezon City, supra note 8 at 419-420. Citation and emphasis omitted.
47Buckley v. Valeo, 424 U.S. 1, 15, 256 (1976).
48Id. at 14.
49Ang Ladlad LGBT Party v. Commission on Elections, G.R. No 190582, April 8, 2010, 618 SCRA 32, 65.
50McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995).
51Id. at 346-347.
52 G.R. No. 132231, March 31, 1998, 288 SCRA 447.
53 Resolution, G.R. No. 73551, February 11, 1988.
54Osmeña v. Comelec, supra at 470.
55Burson v. Freeman, supra note 21 at 211.