G.R. No. 205728 - Separate Opinions

Rev. Bishop Vicente M. Navarra v. COMELEC and Atty. Marvil V. Majarucon, G.R. No. 205728, January 21, 2015
♦ Decision, Leonen [J]
♦ Separate Concurring Opinion, Carpio [J]
♦ Separate Concurring Opinion, Perlas-Bernabe [J]
♦ Dissenting Opinion, Brion [J]

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.

I join the holding of the ponencia setting aside the "take down" Notices1 sent by the Commission on Elections (COMELEC) to petitioners. My concurrence, however, is grounded on the fact that such notices, and the administrative and statutory provisions on which they are based, are content neutral regulations of general applicability repugnant to the Free Speech Clause. Hence, I vote to strike down not only the COMELEC notices but also Section 6(c) of COMELEC Resolution No. 9615, dated 15 January 2013 (Resolution 9615), the regulatory basis for the COMELEC notices, and Section 3.3 of Republic Act No. 9006 (RA 9006), the statutory basis for Resolution 9615.

Section 3.3 of RA 9006, Section 6(c) of Resolution 9615, and the COMELEC Notices Repugnant to the Free Speech Clause

The COMELEC notices were based on Section 6(c) of Resolution 9615, dated 15 January 2013, which provides:

c. Posters made of cloth, paper, cardboard or any other material, whether framed or posted, with an area not exceeding two feet (2’) by three feet (3’). (Emphasis supplied)

3.3. Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two (2) feet by three (3) feetx x x. (Emphasis supplied)

The COMELEC required petitioner Navarra to remove the streamer hanging within the compound of the Roman Catholic church in Bacolod City because, at six by ten feet, it exceeded the maximum size for election posters under Section 3.3 of RA 9006as implemented byResolution 9615.

Section 3.3 of RA 9006 and its implementing rule for the 2013 elections, Section 6(c) of Resolution 9615, are regulations of general applicability, covering campaign speech of all – candidates, non-candidates, political parties and non-political parties. This conclusion is compelled by the absence of any provision in RA 9006, and indeed, in any related statutes, limiting their application only to the campaign speech of candidates and political parties. On the contrary, the penal clause of RA 9006 is couched in broad language encompassing within its ambit anyone who breaches its provisions: "[v]iolation of th[e] Act and the rules and regulations of the COMELEC issued to implement [it] shall be an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code."2 Indeed, RA 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 Section 4) and the conduct of election surveys (Section 5), which involve not only political parties and candidates but also other individuals or entities who fall within the ambit of these provisions. RA 9006 is a generally applicable law asmuch as the Omnibus Election Code is in the field of election propaganda regulation.

To hold the COMELEC without authority to enforce Section 3.3 of RA 9006 against non-candidates and non-political parties, despite the absence of any prohibition under thatlaw, is not only to defeat the constitutional intent behind the regulation of "minimiz[ing] election spending"3 but also to open a backdoor through which candidates and political parties can indirectly circumvent the myriad campaign speech regulations the government adopted toensure fair and orderly elections.

"Election spending" refers not only to expenses of political parties and candidates but also to expenses of their supporters. (Otherwise, all the limitations on election spending and on what constitutes lawful election propaganda would be meaningless). Freeing non-candidates and non-parties from the coverage of RA 9006 allows them to (1) print campaign ad banners and posters of any size and in any quantity, (2) place TV and radio ads in national and local stations for any length of time, and (3) place full-pageprint ads in broadsheets, tabloids and related media. Obviously, printing posters of any size, placing full-page print ads, and running extended broadcast ads all entail gargantuan costs.4 Yet, under the ponencia’s holding, so long as these are done by non-candidates and nonpolitical parties, the state ispowerless to regulate them.

The second evil which results from treating private campaign speech as absolutely protected (and thus beyond the power of the state to regulate) is that candidates and political parties, faced with the limitations on the size of print ads and maximum air time for TV and radio ads under RA 9006, will have a ready means of circumventing these limitations by simply channeling their campaign propaganda activities to supporters who do not happen to be candidates or political parties. Thus, voters during an election season can one day wake up to find print media and broadcast airwaves blanketed with political ads, running full-page and airing night and day, respectively, to promote certain candidates, all paid for by a non-candidate billionaire supporter. Such bifurcated application of RA 9006’s limitations on the sizes of print ads (Section 6.15) and maximum broadcast time for TV and radio campaign ads (Section 6.26) defeats the purpose of regulating campaign speech.

Section 3.3 of RA 9006 and Section 6(c) of Resolution 9615, Content-Neutral Regulations which Impermissibly Restrict Freedom of Speech

Section 3.3 of RA 9006 and Section 6(c) of Resolution 9615 regulate campaign posters by limiting their sizeto two by three feet, regardless of what is printed on the face of the posters. These provisions are classic examples of content-neutral regulations which restrict the manner by which speech is relayed but not the content of what is conveyed. Thus, the notices sent by the COMELEC to petitioner Navarra required the latter to remove the streamer in question not because it contained a message favoring and disfavoring certain senatorial candidates who ran in the last elections but because the streamer, taking into account existing law, was "oversized." Testing the validity of content-neutral regulations like the statutory and administrative provisions in question, requires analysis along four prongs, namely, whether (1) they are within the constitutional power of the government; (2) they further 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 is essential to the furtherance of that interest.7 The level of interest required of the government to justify the validity of content-neutral regulations – "important or substantial" - is lower than the most stringent standard of "compelling interest" because such regulations are "unrelated to the suppression of free expression."8 Proof of compelling interest is required of the government only in the scrutiny of content-based regulations which strike at the core of the freedoms of speech, of expression and of the press protected by the FreeSpeech Clause.9 Nevertheless, content-neutral regulations may still fail constitutional muster if "the incidental restriction on [expressive] freedoms is x x x greater than is essential to the furtherance" of the proffered government interest.10

No serious objections can be raised against the conclusion that it was within the government’s constitutional powers to adopt Section 3.3 of RA 9006 and Section 6(c) of Resolution 9615. Nor is there any quarrel that these regulations advance the important and substantial government interests of "minimiz[ing] election spending" and ensuring orderly elections in light of unmistakable connection between the size of campaign posters, on the one hand, and the overall cost of campaigns and orderly dissemination of campaign information, on the other hand. As these interests relate to the reduction of campaign costs and the maintenance of order, they are also "unrelated to the suppression of free expression." It is in the extent of the incidental restriction wrought by these regulations on expressive freedoms where they ran afoul with the Free Speech Clause.

As crafted, Section 3.3 of RA 9006 provides a uniform and fixed size for all campaign posters, two by three feet,11 irrespective of the location where the posters are placed in relation to the distance from the nearest possible viewer. Thus, whether placed at a common poster area, at the gate of a residential house or outside a 30th floor condominium unit, the campaign poster must be of the same size. However, when placed at the 30th floor of a condominium, the letters in a two by three feet poster would be so small that they would no longer be readable from the ground or from the street.

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 the name of a single candidate, the position he seeks, and his 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 canvass. The size of the letters inevitably shrinks ifmore names and data are added to the poster.

The practical effect of the fixed-size rule under Section 3.3 of RA 9006 (and its implementing rule) is to further narrow the choices of poster locations for anyone wishing to display them in any of the venues allowed by law.12 Voters who wish to make known to the public their choice of candidates (or for that matter, candidates who wish to advertise their candidacies) through the display of posters are precluded from doing so from certain areas not because these areas are off-limits but because, for reasons of geography vis-a-vis the size of the poster, their contents simply become illegible. Such restriction on campaign speech appears to me to be "greater than is 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 craft legislation on the sizing of campaign posters and other paraphernalia with sufficient flexibility to address concerns inherent in the present fixed-dimension model. Accordingly, I vote to GRANT the petition and DECLARE UNCONSTITUTIONAL (1) Section 3.3 of Republic Act No. 9006; (2) Section 6(c) of COMELEC Resolution No. 9615, dated 15 January 2013; and (3) the notices, dated 22 February 2013 and 27 February 2013, of the Commission on Elections for being violative of Section 4, Article III of the Constitution.

I concur with the ponencia that the COMELEC's Notice to Remove Campaign Materials dated February 22, 2013 and Letter dated February 27, 2013 (the COMELEC issuances) ordering the immediate removal of the tarpaulin subject of this case are null and void for being unreasonable restrictions on free speech. I, however, disagree in the approach the ponencia takes in decreeing the same. This stems from my view that the said COMELEC issuances constitute content-neutral and not content-based regulations as the ponencia so holds, reasoning that "the content of the tarpaulin is not easily divorced from the size of its medium."1 In this regard, I agree with the opinion of Senior Associate Justice Antonio T. Carpio that these issuances, which effectively limit the size of the tarpaulin, are examples of content-neutral regulations as they restrict only the manner by which speech is relayed but not the content of what is conveyed.2 I find this to be true since no peculiar reason was proffered by the petitioners behind the sizing of their poster - say, to put emphasis on a particular portion of the text or to deliberately serve as some sort of symbolic allusion. The tarpaulin's size links, as it appears, only to the efficiency of the communication, following the logic that a larger size makes them more visible. This, to my mind, merely concerns the manner by which the speech is communicated, and not its content. In the same vein, it is my observation that sensible use of time and place (both of which are generally recognized as incidents of speech, akin to how I perceive the poster's size) may also affect the efficiency of communication: perceptibly, a message conveyed at a time and place where people are most likely to view the same may have the effect of making the communication more "efficient." The distinction between a content-neutral regulation and a content-based regulation, as enunciated in the case of New sounds Broadcasting Network, Inc. v. Hon. Dy,3 is as follows: [J]urisprudence distinguishes between a content-neutral regulation, i.e., merely concerned withthe 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.4

Since the sizing regulations, i.e., the COMELEC issuances, are concerned only with an incident of speech, that is, the manner by which the speech was communicated, I thus respectfully submit that they should have been characterized by the ponencia as content-neutral, and not content-based regulations. As I see it, the medium here is not the message.

On the premise that the COMELEC issuances constitute contentneutral regulations, the method of constitutional scrutiny which should be applied would then be the intermediate scrutiny test, and not the strict scrutiny test which the ponencia necessarily utilized due to its content-based classification.

As comprehensively explained in the seminal case of Chavez v. Gonzales,5 "[w]hen the speech restraints take the form of a content-neutral regulation, only a substantial governmental interestis required for its validity. Because regulations of this type are not designed to suppress any particular message, they are not subjectto 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 testis 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 approachhas [thus] been formulated in this manner: A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if [(a)] it furthers an important or substantial governmental interest; [(b)]the governmental interest is unrelated to the suppression of free expression; and [(c)]the incident restriction on alleged [freedom of speech and expression] is no greater than is essential to the furtherance of that interest."6

"On the other hand, a governmental action that restricts freedom of speech or of the press based on contentis given the strictest scrutinyin 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."7

Given the peculiar circumstances of this case, it is my view that the COMELEC issuances do not advance an important or substantial governmental interest so as to warrantthe restriction of free speech. The subject tarpaulin cannot be classifiedas the usual election propaganda directly endorsing a particular candidate’s campaign. Albeit with the incidental effect of manifesting candidate approval/disapproval, the subject tarpaulin, at its core, reallyasserts a private entity’s, i.e., the Diocese’s, personal advocacy on a social issue, i.e., reproductive health, in relation to the passage of Republic Act No. 10354,8 otherwise known as the "Responsible Parenthood and Reproductive Health Act of 2012." What is more is that the tarpaulin, although open to the public’s view, was posted in purely private property by the Diocese’s own volition and without the prodding or instruction of any candidate. In Blo Umpar Adiong v. COMELEC (Adiong),9 the Court nullified the prohibition on the posting of decals and stickers in "mobile" places like cars and other moving vehicles as the restriction did not endanger any substantial government interest, observing, among others, that "the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party."10 The Court rationalized that:

The regulation strikes at the freedomof an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner,primarily his own and not of anybody else. If, in the National Press Club[v. Comelec] case [G.R. No. 102653, March 5, 1992, 207 SCRA 1] , the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions[,] with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property.11 (Emphases supplied)

Considering the totality of the factors herein detailed, and equally bearing in mind the discussions made in Adiong, I submit that the COMELEC issuances subjectof this case do not satisfy the substantial governmental interest requisite and, hence, fail the intermediate scrutiny test. Surely, while the COMELEC’s regulatory powers ought to be recognized, personal advocacies pertaining to relevant social issues by a private entity within its own private property ought to fall beyond that broad authority, lest we stifle the value of a core liberty.

ACCORDINGLY, subject to the above-stated reasons, I concur with the ponencia and vote to GRANT the petition.

The present case asks us to deterrrline whether respondent Commission on Elections ( Comelec) should be prevented from implementing the size restrictions in Republic Act No. 9006 (RA 9006, otherwise known as the Fair Elections Act) to the six by ten feet tall tarpaulin posted by petitioner Diocese of Bacolod containing the message "RH LAW IBASURA" during the election period.

The ponente opts to give due course to the petition despite obvious jurisprudential, practical and procedural infirmities that will prejudicially impact on established rules to the detriment of the electoral process; that confuses the lines between right of free speech and election propaganda; and that inordinately disregards constitutional electoral values through its misplaced views on the right to free speech – a right that can exist only if this country continues to be a democratic one where leaders are elected under constitutionally established electoral values and orderly processes.

Thus, the ponente declares as unconstitutional Section 3.3 of RA 9006, and its implementing rule, Section 6(c) of Comelec Resolution No. 9615, for violating the freedom of speech. In so doing, it classifies the size restrictions in RA 9006 as a content-based regulation and applied the strict scrutiny test to a regulation of a poster's size.

In my view, the petition prematurely availed of the Court's power of judicial review BY OPENLY DISREGARDING ESTABLISHED COMELEC PROCESSES BY BYPASSING THE COMELEC EN BANC. This is a legal mortal sin that will sow havoc in future cases before this Court. The petition consequently failed to show any prima facie case of grave abuse of discretion on the part of the Comelec, as it had not yet finally decided on its course of action.

Most importantly, the issues the petition presents have now been MOOTED and do not now present any LIVE CONTROVERSY. The Court will recall that we immediately issued a temporary restraining order to halt further Comelec action, so that the petitioner was effectively the prevailing party when the elections - the critical time involved in this case - took place. Subsequently, the interest advocated inthe disputed tarpaulin was decided by this Court to the satisfaction of the public at large, among them the Church whose right to life views prevailed. THESE ARE CIRCUMSTANCES THAT SHOULD DISSUADE THIS COURT FROM RULING ON A CASE THAT WEIGHS THE RIGHTS OF FREE SPEECH AND DEMOCRATIC ELECTORAL VALUES.

A point that should not be missed is that the disputed tarpaulin is covered by regulations under RA 9006, asit falls within the definition of election propaganda. The key in determining whether a material constitutes as election propaganda lies in whether it is intended to promote the election of a list of candidates it favors and/or oppose the election of candidates in another list. RA 9006 did not, as the ponente infers, require that the material be posted by, or in behalf of the candidates and/or political parties.

Lastly, the assailed law is a valid content-neutral regulation on speech, and is thus not unconstitutional. The assailed regulation does not prohibit the posting of posters; does not limit the number of allowable posters that may be posted; and does not even restrict the place where election propaganda may be posted. It only regulates the posters’ size.

To reiterate, our decision in the present case sets the tone in resolving future conflicts between the values before us. While freedom of speech is paramount, it does have its limits. We should thus be careful in deciding the present case, such that in recognizing one man’s right to speak, we do not end up sacrificing the ideals in which our republican, democratic nation stands upon. IN SUM, THE MORE PRUDENT APPROACH FOR THIS COURT IS TO SIMPLY DISMISS THE PETITION FOR MOOTNESS AND PROCEDURAL INFIRMITIES, AND TO PROCEED TO THE WEIGHING OF CONSTITUTIONAL VALUES IN A FUTURE LIVE AND MORE APPROPRIATE CASE WHERE OUR RULING WILL CLARIFY AND ELUCIDATE RATHER THAN CONFUSE.

This case reached us through a special civil action for certiorari and prohibition with application for preliminary injunction and temporary restraining order under Rule 65 of the Rules of Court. The petition assails the Comelec’s Notice to Remove Campaign Materials that it issued through Election Officer Mavil V. Majarucon on February 22, 2013, and through Comelec Law Director Esmeralda Amora-Ladra on February 27, 2013.

The assailed notices direct the petitioners to remove the tarpaulin (subject poster) they placed within a private compound housing at the San Sebastian Cathedral of Bacolod on February 21, 2013 for exceeding the size limitations on election propaganda. The notice dated February 27, 2013 warned the petitioners that the Comelec Law Department would be forced to file an election offense case against them if the subject poster would not be removed.

The petitioners responded by filing the present petition assailing the two notices the Comelec sent to them on the ground that the poster is not a campaign material, and is hence outside the coverage of Comelec Resolution No. 9615. The petitioners also supported their position by invoking their rights to freedom of expression and freedom of religion.

A. Reviewability of the assailed notices as an administrative act of the Comelec

The ponente posits that a judicial review of the size limitations under RA 9006 is necessary, as it has a chilling effect on political speech. According to the ponente, the present petition has triggered the Court’s expanded jurisdiction since the Comelec’s letter and notice threaten the fundamental right to speech.

To be sure, the concept of judicial power under the 1987 Constitution recognizes its (1)traditional jurisdiction to settle actual cases or controversies; and (2)expanded jurisdiction to determine whether a government agency or instrumentality committed a grave abuse of discretion.1 The exercise of either power could pave the way to the Court’s power of judicial review, the Court’s authority to strike down acts of the legislative and/or executive, constitutional bodies or administrative agencies that are contrary to the Constitution.2

Judicial review under the traditional jurisdiction of the Court requires the following requirements of justiciability: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of itsenforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis motaof the case.3

Failure to meet any of these requirements justifies the Court’s refusal to exercise its power of judicial review under the Court’s traditional power. The Court, however, has, inseveral instances, opted torelax one or more of these requirements to give due courseto a petition presenting issues of transcendental importance to the nation.

In these cases, the doctrine of transcendental importance relaxes the standing requirement, and thereby indirectly relaxes the injury embodied in the actual case or controversy requirement. Note at this point that an actual case or controversy is present when the issues it poses are ripe for adjudication, that is, when the act being challenged has had a direct adverse effect on the individual challenging it. Standing, on the other hand, requires a personal and substantial interest manifested through a direct injury that the petitioner has or will sustain as a result of the questioned act.

Thus, when the standing is relaxed because of the transcendental importance doctrine, the character of the injury presented to fulfill the actual case or controversy requirementis likewise tempered. When we, for instance, say that the petitioners have no standing as citizens or as taxpayers but we nevertheless give the petition due course, we indirectly acknowledge that the injury that they had or will sustain is not personally directed towards them, but to the more general and abstract Filipino public.

A readily apparent trend from jurisprudence invoking the transcendental importance doctrine shows its application in cases where the government has committed grave abuse of discretion amounting to lack of, or excess of jurisdiction. This strong correlation between the exercise of the Court’s expanded jurisdiction and its use of the transcendental importance doctrine reflects the former’sdistinct nature and origin. The Court’s expanded jurisdiction roots from the constitutional commissioners’ perception of the political question doctrine’s overuse prior to the 1987 Constitution, a situation that arguably contributed to societal unrest in the years preceding the 1987 Constitution.

The political question doctrine prevents the Court from deciding cases that are of a political nature, and leaves the decision to the electedofficials of government. In other words, the Court, through the political question doctrine, defers to the judgment and discretion of the Executive and Legislature, matters that involve policy because they are the people’s elected officials and hence are more directly accountable to them.

The 1987 Constitution, recognizing the importance of the Court’s active role in checking abuses in government, relaxed the political question doctrine and made it a duty upon the Court to determine whether there had been abuses in the government’s exercise of discretion and consequently nullify such actions that violate the Constitution albeitin the narrow and limited instances of grave abuse of discretion. Thus, when a government agency’s exercise of discretion is so grave as to amount to an excess or lack of jurisdiction, it becomes the duty to step in and check for violations of the Constitution. In these instances, the political question doctrine cannot prevent the Court from determining whether the government gravely abused its jurisdiction, against the back drop of the Constitution.

Necessarily, the government’s actof grave abuse of discretion, more so if it has nationwide impact, involves a matter of transcendental importance to the nation. On the other hand, whenthe government’s act involves a legitimate exercise of discretion, or amounts to an abuse of discretion that is not grave, then the need to temper standing requirements through the transcendental importance doctrine is not apparent.

This correlation between the Court’s use of the transcendental doctrine requirement and its eventual exercise of the power of judicial review under its expanded jurisdiction warrants a review, prima facie, of whether there had been a grave abuse of discretion on the part of government. Where there is a showing prima facieof grave abuse, the Court relaxes its locus standi requirement (and indirectly its actual case or controversy requirement) through the transcendental importance doctrine. Where there is no showing of prima faciegrave abuse, then the requirements of justiciability are applied strictly.

Thus, translated in terms of the Court’s expanded jurisdiction, the actual case or controversy requirement is fulfilled by a prima facieshowing of grave abuse of discretion. This approach reflects the textual requirement of grave abuse of discretion in the second paragraph of Article VIII, Section 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 on the presence or absence of grave abuse of discretion, as distinguished from a situation where the issue of constitutional validity is raised within a "traditionally" justiciable case which demands that the requirement of actual controversy based on specific legal rights must exist.

That a case presents issues of transcendental importance, on the other hand, justifies direct resort to this Court without first complying with the doctrine of hierarchy of courts.

A review of the petition shows that it has failed to show a prima facie case of grave abuse of discretion on the part of the Comelec.

The petition characterizes the noticesas administrative acts of the Comelec that are outside the latter’s jurisdiction to perform. The Comelec’s administrative functionrefers to the enforcement and administration of election laws. Under the Section 2(6), Article IX-C of the Constitution, the Comelec is expressly given the power to"prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." The constitutional grant to the Comelec of the power to investigate and to prosecute election offenses as an adjunct to the enforcement and administration of all election laws is intended to enable the Comelec to effectively ensure to the people the free, orderly, and honest conduct of elections.4

This administrative function is markedly distinct from the Comelec’s two other powers as an independent government agency established under the 1987 Constitution, i.e., its quasi-legislative powerto issue rules and regulations to implement the provisions of the 1987 Constitution,5 the Omnibus Election Code,6 and other election laws;7 and its quasi-judicial powerto resolve controversies arising from the enforcement of election laws, and to be the sole judge of all pre-proclamation controversies and of all contests relating to the elections, returns, and qualifications.8

The nature of the assailed action of the Comelec is essential to determine the proper remedy by which a review of its actions can reach this Court. As a general rule, an administrative order of the Comelec is not an appropriate subject of a special civil action for certiorari.9

Through jurisprudence, the Court has clarified that the petition for certiorari under Rule 64 in relation to Rule 65 of the Rules of Court covers only the Comelec’s quasi-judicial functions.10 By reason of its distinct role in our scheme of government, the Comelec is allowed considerable latitude in devising means and methods to ensure the accomplishment of the great objective for which it was created – free, orderly and honest elections.11 The Court recognizes this reality and concedes that it has no general powers of supervision over the Comelec except those specifically granted by the Constitution, i.e., to review its decisions, orders and rulings within the limited terms of a petition for certiorari.12

Thus, the Court reviews Comelec’s administrative acts only by way of exception, when it acts capriciouslyor whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction. Necessarily, this invokes the Court’s expanded jurisdiction under the second paragraph of Article VIII, Section 1. That there is an alleged grave abuse of discretion on the part of Comelec, however, does not automatically mean that the petition should be given due course. It has to meet the requirements of justiciability which, under the terms of the Court’s expanded judicial power, has been translated to mean a prima facie showing of a governmental entity, office or 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 something has already been done13 or has taken place under the law14 and the petitioner sufficiently alleges the existence of a threatened or immediate injury to itself as a result of the gravely abusive exercise of discretion.15

In the case of an administrative agency (more so, if it involves an independent constitutional body), a matter cannot be considered ripe for judicial resolution unless administrative remedies have been exhausted.16 Judicial review is appropriate only if, at the very least, those who have the power to address the petitioner’s concerns have been given the opportunity to do so.In short, the requirement of ripeness does not become less relevant under the courts’ expanded judicial power.

In this light, I find it worthy to note that that the petition challenges RA 9006 and Comelec Resolution No. 9615 not because its text, on its face, violates fundamental rights,17 but because Comelec erroneously applied an otherwise constitutional law. Comelec’s administrative act of including the petitioners’ poster within the coverage of Comelec Resolution No. 9615 allegedly violated their constitutional rights to freedom of speech and religion.

This issue could have been best decided by the Comelec, had the petitioners followed the regular course ofprocedure in the investigation and prosecution of election offense cases. The assailed action of Comelec, after all, contained a warning against possible prosecution for an election offense that would have had to undergo an entire process before it is filed before the proper tribunal. This process allows suspected election offenders to explain why an election offense should not be filed against them, and for the Comelec to consider the explanation.

Comelec Resolution No. 9386 (Rules of Procedure in the Investigation and Prosecution of Election Offense Cases in the Commission on Elections), in particular, provides that once a complaint is initiated, an investigating officer would have to conduct a preliminary investigation to determine whether it warrants prosecution. At this stage, the 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 to propound clarificatory questions to the parties and their witnesses. The parties may even submit questions to the investigating officer, which the latter may propound to the parties or parties or witnesses concerned.19

After preliminary investigation, the investigating officer has two options: if he finds no cause to hold the respondent for trial, he shall recommend the dismissal of the complaint; otherwise, he shall prepare a recommendation to prosecute, and the corresponding Information.20 Whichever course he takes, the investigating officer is required to forward the records of the case to the Commission En Banc (in cases investigated by the Law Department or the Regional Election Director) or to the Regional Election Director (in cases investigated by the Assistant Regional Election Director, Regional Election Attorney, or Provincial Election Supervisor or any of the Commission's lawyers assigned in the field office) for their approval or disapproval. In the latter case, the resolution of the Regional Election Director may be subject of a motion for reconsideration and, if need be, a petition for review with the COMELEC En Banc.21

In the case before us, the petitioners ask us to exercise our power of judicial review over the action of the COMELEC’s Election Officer, Mavil Majarucon, who ordered the petitioners to remove the subject poster, and over the action of Director Esmeralda Amora-Ladra of the Comelec Law Department, reiterating the previous order with a warningof possible criminal prosecution – without any other action by the Comelec at its higher levels as the established procedures provide.

Contrary to the petitioners’ allegation that they "have no other plain, speedy, and adequate remedy, the above-described procedure before the Comelec clearly shows otherwise. By immediately invoking remedies before this Court, the petitioners deprived the Comelec itself of the opportunity to pass upon the issue before us– a procedure critical in a certiorari proceeding. In short, the direct invocation of judicial intervention is clearly premature.

In the interest of orderly procedure and the respect for an independent constitutional commission such as the Comelec, on matters that are prima faciewithin its jurisdiction, the expansion of the power of judicial review could not have meant the power to review any and all acts of a department or office within an administrative framework.

While I agree with the ponencia that Section 2(3), Article IX-C does not grant the Comelec the power to determine "any and all" issues arising during elections, the Comelec under this provision can certainly decide whether to initiate a preliminary investigation against the petitioners. It can decide based on the arguments and pieces of evidence presented during the preliminary investigation ―whether there is probable cause to file an information for an election offense against the petitioners. This determination is even subject to review and reconsideration, as discussed in the above-described process.

To be sure, this is a matter that the Comelec should have been given first an opportunity to resolve before the petitioners directly sought judicial recourse. While the freedoms invoked by the petitioners certainly occupy preferential status in our hierarchy of freedoms, the Court cannot second guess what the Comelec’s action would have been, particularly when the matters before us are nothing more than the Election Officer Majarucon’s notice and the Director Amora-Ladra’s order.

In these lights, I see no occasion to discuss the traditional rules on hierarchy of courtsand transcendental importance, which only concern the propriety of a direct resort to the Supreme Court instead of the lower courts, and not the question of whether judicial intervention is proper in the first place. As I concluded above, the direct invocation of judicial intervention is as yet premature.

Aside from the petition’s premature recourse to the Court, the legal issues it presents has already become moot and academic.

A petition becomes moot and academic when it "ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value."22 A case becomes moot and academic when there is no more actual controversy between the parties, or no useful purpose can be served in passing upon the merits.23

The passage of the election period has effectively made the issues in the present petition moot and academic. Any decision on our part – whether for the validity or invalidityof the Comelec’s actions would no longer affect the rights of either the petitioners to post the subject posters, or the Comelec to prosecute election offenses.

The present petition had been filed to assail an administrative act of the Comelec, which warned the petitioners of a possible prosecution should they continue posting election propaganda that do not comply with the size requirements under RA 9006. The Letter issued by Comelec Director Amora-Ladra, in particular, advised compliance with the size requirements, otherwise it would file an election case against them. Thus, as per the Comelec’s Letter, prosecution of the offense would commence only if the petitioners continued posting the poster without complying with the size requirements. Had the petitioners complied with the size requirements for their poster, no election offense would have been filed against them.

The petitioners, upon receipt of the letter, immediately filed a petition for certioraribefore the Court the next day. Five days later, they were granted a temporary restraining order that forbade the Comelec from enforcing its Notice and Letter. At this point, the Comelec had not yet implemented the warning it gave the petitioners in its Letter. Thus, the temporary restraining order effectively prevented the Comelec’s Letter from being enforced. At the time the TRO prevented the enforcement of the Comelec’s Letter, the petitioners could have still exercised the choice of complying with the Comelec’s Notice and Letter, and hence avoided the initiation of an election offense against them. This choice had never been exercised by the petitioners as the temporary restraining order forbade the Notice and Letter’s implementation, and effectively allowed them to continue posting the subject posters without threat of prosecution.

In the mean time, the election period, during which the election offense of illegally posting election propaganda may be committed and prosecuted, came to pass. Thus, our decision in this case, and the consequent lifting of the temporary restraining order against the Comelec, could no longer affect the rights of the petitioners. At this point in time, our ruling regarding the validity of the Comelec’s Notice and Letter (whether for its validity or invalidity) would no longer have any impact on the petitioners and respondent.

To be sure, the issue of the constitutionality of the poster’s size limitations, as well as the inclusion of speech of private individuals are issues capable of repetition, as elections are held every three years.

But while these issues are capable of repetition, they most certainly cannot escape review. The administrative process outlined in Comelec Resolution No. 9615 provides a process through which the Comelec may decide these issues with finality. After the Comelec had been allowed to exercise its jurisdiction to the fullest, judicial review of its actions may be availed of through a petition for certiorari under the Rules of Court. At that point, the issues would certainly no longer be premature.

Section 6(c) of Comelec Resolution No. 9615 are valid content-neutral regulations on election propaganda

Even assuming that the Court can give due course to the present petition, I strongly disagree with the ponencia’s finding that the notices, as well as the regulations they enforce,are unconstitutional for violating the petitioners’ right to free speech.

According to the ponencia, the Comelec’s attempt to enforce Comelec Resolution No. 9615 is a content-based regulation that is heavily burdened with unconstitutionality. Even assuming that the letter and notice contain a content-neutral regulation, the ponencia asserts that it still fails to pass the intermediate test of constitutionality.

The letter and notice sent by the Comelec’s legal department both sought to enforce the size restrictions on election propaganda applicable to the subject poster. The Comelec advised the petitioners to comply with these size restrictions or take down the poster, or else it would be compelled to file an election offense against him. Thereby, the Comelec recognized that it would not have any cause of action or complaint if only the petitioners would comply with the size restriction.

The size restrictions are found in Comelec Resolution No. 9615, which implements Section 3 of the Fair Elections Act. Section 3.3 of the Fair Elections Act and Section 6(c) of Comelec Resolution No. 9615 mandate that posters containing election propaganda must not exceed an area of two by three feet.

Three queries must be resolved in determining the legality of Comelec’s letter and notice:

First, whether the subject poster falls within the election propaganda that may be regulated by the Comelec;

Second, whether the size restrictions in Comelec Resolution No. 9615 and RA 9006 impose content-neutral or content-based restrictions on speech; and

A. The subject poster falls within the regulated election propaganda in RA 9006 and Comelec Resolution No. 9615

The content of the tarpaulin, as well as the timing of its posting, makes it subject of the regulations in RA 9006 and Comelec Resolution No. 9615.

Comelec Resolution No. 9615 contains rules and regulations implementing RA 9006 during the 2013 national elections. Section 3 of RA 9006 and Section 6 of Comelec Resolution No. 9615 seek to regulate election propaganda, defined in the latter as:

The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed, displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic representation that iscapable of being associated with a candidate or party, and is intended to draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a public office. In broadcast media, political advertisements may take the form of spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers. Political advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet website, including, but not limited to, social networks, blogging sites, and microblogging sites, in return for consideration, or otherwise capable of pecuniary estimation. [Emphasis supplied]

Based on these definitions, the subject poster falls within the definition of election propaganda. It named candidates for the 2013 elections, and was clearly intended to promote the election of a list of candidates it favors and oppose the election of candidates in another list. It wasdisplayed in public view,and as such is capable of drawing the attention of the voting public passing by the cathedral to its message.

That the subject poster was posted by private individuals does not take it away from the ambit of the definition. The definition found in Comelec Resolution No. 9615 does not limit election propaganda to acts by or in behalf of candidates.

Neither does RA 9006 contain such restrictions: a look at what constitutes lawful election propaganda in RA 9006 also does not specify by whom or for whom the materials are posted, viz.:

Sec. 3. Lawful Election Propaganda. - Election propaganda whether on television, cable television, radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the partylist elections and for all bona fide candidates seeking national and local elective positions subject to the limitation onauthorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC). x x x [Emphasis supplied]

Further, lawful election propaganda under the Omnibus Election Code, which RA 9006 cites as part of its definition of what constitutes lawful propaganda, does not limit the materials enumerated therein to those posted by or in behalf of candidates.24 Neither does the definition of what constitutes an election offense limit the unlawful posting of election propaganda to those posted by, or in behalf of candidates and their parties.25

Thus, I find it clear that the law does not distinguish between materials posted by or in behalf of candidates or by private individuals who have no political affiliation. When the law does not distinguish, neither should we.

Had Congress intended to limit its definition of election propaganda to materials posted for or in behalf of candidates, it could have so specified. Notably, Section 926 on the Posting of Campaign Materials indicates who the Comelec may authorize to erect common poster areas for campaign materials in publicplaces. It does not, as the ponencia makes it appear, limit the definition of election propaganda to those posted by candidates and parties.

The title of Section 9 uses the word "campaign materials" and not election propaganda; thus, it refers to a particular type of election propaganda. Election propaganda becomes a campaign material once it is used by candidates and political parties. Nevertheless, the latter is different from the more generic term ‘election propaganda’ in the other parts of RA 9006.

As worded, Section 9 regulates the manner by which candidates may post campaign materials, allowing them, 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 propaganda to posts by parties and candidates.Notably, the word "campaign material" appears only once in RA 9006, signifying its limited application to Section 9, and that it should not be interchanged with the term "election propaganda" appearing in other parts of the law.

In these lights, I disagree with the ponencia’s insistence that the Comelec had no legal basis to regulate the subject posters, as these are expressions made by private individuals.

To support this conclusion, the ponencia pointed out that first, it may be inferred from Section 9 of RA 9006 and Section 17 of Comelec Resolution No. 9615 (both referring to campaign materials) that election propaganda are meant to apply only topolitical parties and candidates because the provisions on campaign materials only mention political parties and candidates;27 second, the focus of the definition of the term election propaganda hinges on whether it is "designed to promote the election or defeat of a particular candidate or candidates to a public office;"28 and third, the subject poster falls within the scope of personal opinion that is not considered as political advertising under Section 1, paragraph 429 of Comelec Resolution No. 9615.30

To my mind, the first two arguments lead us to navigate the forbidden waters of judicial legislation. We cannot make distinctions when the law provides none– ubi lex non distinguit, nec nosdistinguere debemos.

As I have earlier pointed out, the definition of election propaganda is not limited to those posted by, or in behalf of candidates. Further, campaign materials are different from election propaganda – the former refers to election propaganda used by candidates and political parties, and hence it is understandable that it would only mention candidates and political parties. Indeed, the definition of election propaganda focuses on the impact of the message, i.e., that it is intended to promote or dissuade the election of candidates, and not for whom or by whom it is posted. This nuance in the definition recognizes that the act ofposting election propaganda can be performed by anyone, regardless of whether he is a candidate or private individual.

It does not serve to limit the definition of election propaganda to materials posted by candidates. At this point, I find it worthy toemphasize that our first and primary task is to apply and interpret the law as written, and not as how we believe it should be.

With respect to the third argument, personal opinions are of course not included within the definition of election propaganda. But when these opinions on public issues comingle with persuading or dissuading the public to elect candidates, then these opinions become election propaganda.

Notably, the exclusion of personal opinions in the definition of political advertisements refers to mattersthat are printed in social media for pecuniary consideration. The entire provision was meant to cover the phenomenon of paid blogs and advertisements in the Internet, without including in its scope personal opinions of netizens. I do not think it can be extended to election propaganda, as exceptions usually qualify the phrase nearest to it – in this case, it was meant to qualify matters appearing in the Internet.

Further, if we were to follow the ponencia’s logic, and proclaim a personal opinion by a private individual meant to influence the public as regards their vote an exemption to the election propaganda definition, then it would render the entire definition useless. Since Comelec Resolution No. 9615 does not limit personal opinions to private individuals, then it applies with equal force to candidates, who necessarily have a personal opinion that they should get elected, and would not pay themselves to utter these opinions. I dare say that such an absurd situation, where an exception nullifies the general provision, had not been the intent of Comelec Resolution No. 9615.

Additionally, the definition of election propaganda under RA 9006 has no mention of personal opinions, and in case of inconsistency (which to me does not exist in the present case) between a law and a regulation implementing it, the law should prevail.

Worthy of note, lastly, is that the commingling of the subject poster’s content with a public issue in another poster does not exempt the former from regulation as an election propaganda. The definition of election propaganda necessarily includes issues that candidates support, because these issues can persuade or dissuade voters to vote for them. To be sure, it is a very short-sighted view to claim that propaganda only relates to candidates, not to the issues they espouse or oppose.

The present case reached this Court because the petitioners, who apparently are bent on carrying their Reproductive Health (RH) message to the people, and as a means, rode on tothe then raging electoral fight by identifying candidates supporting and opposing the RH. While indeed the RH issue, by itself, is not an electoralmatter, the slant that the petitioners gave the issue converted the non-election 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 poster containing the message "RH LAW IBASURA" was an election propaganda, and should thus comply with the size limitations. To stress, the subject poster and its Team Buhay and Team Patay message advocated support or opposition to specific candidates based ontheir respective RH stand and thus cannot but fall within the coverage of what constitutes as election propaganda.

Lastly, that the subject poster was posted on private property does not divest the Comelec of authority toregulate it. The law specifically recognizes the posting of election propaganda on private property provided its owner consents to it. In the present case, the property owner is the Diocese of Bacolod itself, and the posting of the subject poster was made upon its own directive.

Philippine jurisprudence distinguishes between the regulation of speech that is content-based, from regulation that is content-neutral. Content-based regulations regulate speech because of the substance of the message it conveys.31 In contrast, content-neutral regulations are merely concerned with the incidents of speech: the time, place or manner of the speech’s utterance under well-defined standards.32

Distinguishing the nature of the regulation is crucial in cases involving freedom of speech, as it determines the test the Court shall apply in determining its validity.

Content-based regulations are viewed with a heavy presumption of unconstitutionality. Thus, the governmenthas the burden of showing that the regulation is narrowly tailored tomeet a compelling state interest, otherwise, the Court will strike it down as unconstitutional.33

In contrast, content-neutral regulations are not presumed unconstitutional. They pass constitutional muster once they meet the following requirements: first, that the regulation is within the constitutional power of the Government; second, that it furthers an important or substantial governmental interest; third, that the governmental interest is unrelated to the suppression of free expression; and fourth, that the incidental restriction on speech is no greater than is essential to further that interest.34

The assailed regulations in the present case involve a content neutral regulation that controls the incidents of speech. Both the notice and letter sent by the Comelec to the Diocese of Bacolod sought to enforce Section 3.3 of RA 9006 and Section 6(c) of Comelec Resolution No. 9615 which limits the size of posters that contain election propaganda to not more than two by three feet. It does notprohibit anyone from posting materials that contain election propaganda, so long as it meets the size limitations.

Limitations on the size of a poster involve a content-neutral regulation involving the manner by which speech may be uttered. It regulates how the speech shall be uttered, and does not, inany manner affect or target the actual content of the message.

That the size of a poster or billboard involves a time, manner and place regulation is not without judicial precedent, albeitin the US jurisdiction where our Bill of Rights and most of our constitutional tests involving the exercise of fundamental rights first took root. Several cases35 decided by the US Supreme Court treated size restrictions in posters as a content-neutral regulation, and consequently upheld their validity upon a showing of their relationship to a substantial government interest.

Admittedly, the size of the poster impacts on the effectiveness of the communication and the gravity of its message. Although size may be considered a part of the message, this is an aspect that merely highlights the content of the message. It is an incident of speech that government can regulate, provided it meets the requirements for content-neutral regulations.

That the incidents of speech are restricted through government regulation do not automatically taint them because they do not restrict the message the poster itself carries. Again, for emphasis, Comelec Resolution No. 9615 and RA 9006 regulate how the message shall be transmitted, and not the contents of the message itself.

The message in the subject poster istransmitted through the text and symbols that it contains. We can, by analogy, compare the size of the poster to the volume of the sound of a message.36 A blank poster, for instance and as a rule, does not convey any message regardless of its size (unless, of course, 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 volume. We communicate with each other by symbols – written, verbal or illustrated – and these communications are what the freedom of speech protects, not the manner by which these symbols are conveyed.

Neither is the ponencia’s contention ―that larger spaces allow for more messages persuade to treat the size limitation as a content-based regulation – persuasive. RA 9006 and Comelec Resolution No. 9615 do not limit the number of posters that may be posted; only their size is regulated. Thus, the number of messages that a private person may convey is not limited by restrictions on poster size.

Additionally, I cannot agree with the ponencia’s assertion that the assailed regulation is content-based because it only applies to speech connected to the elections, and does not regulate other types of speech, such as commercial speech.37

I am sure there are cases in the United States that recognize that a difference in treatment of speech based on the content of the message involves a content-based regulation. These cases, however, involve a single law providing either a preferential or prejudicial treatment on certain types of messages over other messages.38 In contrast, the assailed regulation covers only election propaganda (without regard to the actual message), and applies only during the election period.

Further, this kind of assertion, if followed, would amount to the declaration that the entire RA 9006 is a content-based regulation of speech, because it only regulates speech related tothe elections. On the flipside, this kind of assertion would render time, manner and place regulations on commercial speech as content-based regulations because they regulate only speech pertaining to commerce and not others. I find these resulting situations to be absurd as, in effect, they eradicate the jurisprudential distinction between content-based and content-neutral regulations.

The more reasonable approach, tomy mind, is to examine the regulation based on what it has intended to regulate, i.e., the resulting impact of the regulation. In the present case,the assailed regulation results into restricting the size of posters containing election propaganda, which, as I have explained above, is a content-neutral regulation.

C. Comelec Resolution No. 9615 passes the intermediate scrutiny test for content-neutral regulation

Applying the test for the intermediate test to Section 3.3 of RA 9006 and Section 6(c) of Comelec Resolution No. 9615, I find that the size limitation on posters does not offend the Constitution.

1. The size limitation for posters containing election propaganda in Section 6(c) of Comelec Resolution No. 9615 and Section

Philippine jurisprudence has long settled that the time, place, and manner of speech may be subject to Government regulation. Since the size of a poster involves a time, place and manner regulation, then it may be the proper subject of a government regulation.

That Congress may impose regulations on the time place, and manner of speech during the election period is even implicitly recognized in Section 2, paragraph 7, Article IX-C of the 1987 Constitution. Under this provision, the Comelec is empowered to recommend to Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted. That Congress can pass regulations regarding places where propaganda materials may be posted necessarily indicates that it can also pass other content-neutral regulations, such as the time and manner of the speech’s utterance.

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 orderly elections – have been specifically recognized, in our Constitution39 and in the jurisprudence applying them,40 as important constitutional values. If speech enjoys preference for the individualin the hierarchy of rights, election regulations likewise have their preferred status in the hierarchy of governmental interests and have no less basis than the freedom of speech.41

2. The size limitation for posters containing election propaganda furthers an important and substantial governmental interest

To justify its imposition of size restrictions on posters containing election propaganda, the Comelec invokes its constitutional mandate to ensure equal opportunity for public information campaigns among candidates, to ensure orderly elections and to recommend effective measures to minimize election spending.

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 signifies that they are important. We have, in several cases, upheld the validity of regulations on speech because of these state interests.42

Further, the limitation on the size of posters serves these interests: a cap on the size of a poster ensures, to some extent, uniformity in the medium through which information on candidates may be conveyed to the public. It effectively bars candidates, supporters or detractors from using posters too large that they result in skewed attention from the public. The limitation also prevents the candidates and their supporting parties from engaging in a battle of sizes (of posters) and, in this sense, serve to minimize election spending and contribute to the maintenance of peace and order during the election period.

The ponencia dismissed the government interests the Comelec cites for not being compelling enough to justify a restriction on protected speech. According to the ponencia, a compelling state interestis necessary to justify the governmental action because it affects constitutionally-declared principles, i.e., freedom of speech.43

Firstof all, the ponenciahas mixed and lumped together the test for the constitutionality of a content-based regulation with that of a contentneutral regulation.

A compelling state interest is a requirement for the constitutionality of a content-based regulation. The ponencia imposes this requirement as an addition to the intermediate test for content-neutral regulations, while at the same time applying this modified intermediate test to a regulation that it has described as content-based. The test to determine the constitutionality of a content-based regulation is different, and in fact requires a higher standard, from the test to determine a content-neutral regulation’s validity. The requirements for the compelling state interest test should not be confused with the requirements for the intermediate test, and vice versa.

If we were to require a compelling state interest in content-neutral regulations, we, in effect, would be transforming the intermediate test to a strict scrutiny test, and applying it to both content-based and content-neutral regulations, as both regulations involve a constitutional principle (i.e. the content of speech and the manner of speech). In other words, we would be eradicating a crucial jurisprudential distinction on testing the validity of a speech regulation, something that I find no cogent reason to disturb.

Neither can I agree with the ponencia’suse of Adiong v. Comelec44 as authority for holding that ensuringe quality between candidates is less important than guaranteeing the freedom of expression.45 This pronouncement is within the context of characterizing the prohibition of stickers and decals 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 size. Notably, the weighing of constitutional values applies on a case-to-case basis; we have, in the past, decided cases where the regulation of speech is allowed to ensure equal access to public service.

I note, too that ensuring equality between candidates is not the only goal achieved in regulating the size of election posters – it is also meant to enforce the constitutional goals of minimizing election spending, and ensuring orderly elections.

Lastly, I cannot agree with the ponencia’s contention that the Comelec’s interest and regulatory authority in the posting of election propaganda is limited to postings in public places. The regulatory frame work of RA 9006 is not limited to election propaganda in public places, and in fact recognizes that they may be posted inprivate property, subject to their owners’ consent.

Further, the pronouncement in Adiong, where the Court held that the regulation prohibiting the posting of decals and stickers in private property violates the property owners’ right to property, does not apply in the presently assailed regulation, because the latter does not prohibit the posting of posters but merely regulates its size.

The ponencia’s legal conclusion also contravenes settled doctrine regarding the government’s capacity to regulate the incidents of speech, i.e., its time, place and manner of utterance. Notably, paragraph 7, Section 2, Article IX-C of the 1987 Constitution ―one of the provisions the Comelec invokes to justify its regulation ―specifically recognizes that the Congress may regulate the places of posting election propaganda. This provision, like RA 9006, does not limit the generic term‘place,’ and thus applies to both public and private property. Justice Estela M. Perlas-Bernabe, on the other hand, argues that there is no substantial state interest in restricting the posters’ size, because like the posting of decals and stickers in Adiong,46 it does not endanger any substantial government interest and at the same time restricts the speech of individuals on a social issue.47

It must be stressed, however, that unlike in Adiong, which prohibited the posting of decals and stickers in private places, the assailed regulation in the present case does not prohibit the posting of election propaganda, but merely requires that it comply with size requirements. These size requirements promote government interests enumerated in the Constitution, and its non-regulation would hinder them.

3. The governmental interest in limiting the size of posters containing election propaganda is unrelated to the suppression of free expression

The government’s interest in limiting the size of posters containing election propaganda does add to or restrict the freedom of expression. Its interests in equalizing opportunity for public information campaigns among candidates, minimizing election spending, and ensuring orderly elections do not relate to the suppression of free expression.

Freedom of expression, in the first place, is not the god of rights to which all other rights and even government protection of state interest must bow. Speech rights are not the only important and relevant values even in the most democratic societies. Our Constitution, for instance, values giving equal opportunity to proffer oneself for public office, without regard to a person’s status, or the level of financial resources that one may have at one's disposal.48

On deeper consideration, elections act as one of the means by which the freedom of expression and other guaranteed individual rights are protected, as they ensure that our democratic and republican ideals of government are fulfilled. To put it more bluntly, unless there are clean, honest and orderly elections that give equal opportunities and free choice to all, the freedoms guaranteed to individuals may become a joke, a piece of writing held in reverence only when it suits the needs or fancy of officials elected in tainted elections.

4. The incidental restriction on speech is no greater than is essential to further that interest

Indeed, the restriction on the poster’s size affects the manner by which the speech may be uttered, but this restriction is no greater than necessary to further the government’s claimed interests.

Size limits to posters are necessary to ensure equality of public information campaigns among candidates, as allowing posters with different sizes gives candidates and their supporters the incentive to post larger posters. This places candidates with more money and/or with deep-pocket supporters at an undue advantage against candidates with more humble financial capabilities.

Notably, the law does not limit the number of posters that a candidate, his supporter, or a private individual may post. If the size of posters becomes unlimited as well, then candidates and parties with bigger campaign funds could effectively crowd out public information on candidates with less money to spend to secure posters – the former’s bigger posters and sheer number could effectively take the attention away from the latter’s message. In the same manner, a lack of size limitations would also crowd out private, unaffiliated individuals from participating in the discussion through posters, or at the very least, compel them to erect bigger posters and thus spend more.

Prohibiting size restrictions on posters is also related to election spending, as it would allow candidates and their supporters to post as many and as large posters as their pockets could afford.

In these lights, I cannot agree with Justice Antonio T. Carpio’s argument that the size restriction on posters restricts speech greater than what is necessary to achieve the state’s interests. The restriction covers only the size of the posters, and not the message it contains. If posting a longer message or its readability is the issue, then it must be pointed out that nothing in RA 9006 or Comelec Resolution No. 9615 prevents the posting of more than one poster containing the longer message in one site. Applying this to Justice Carpio's example, condominium owners in the 30th floor, should they be adamant in posting their message in the said floor, can post more than one poster to make their message readable.

Too, they can still post their message in other areas where their message may be read. It may be argued, at this point, that this would amount to an indirect regulation of the place where posters may be posted. It must be remembered, however, that the place of posting involves a content neutral regulation that the Comelec is authorized to implement, and that in any case, there is no explicit limitation as to where the posters may be posted. They may still be posted anywhere, subject only to the size requirements for election propaganda.