DIOCESE OF BACOLOD v COMELEC

G. R. No. 205728 | January 21, 2015

TICKER: team patay v team buhay tarpaulin

FACTS:

Petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian Cathedral of
Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10') in size. They were posted on
the front walls of the cathedral within public view. One with a statement “IBASURA RH LAW” and the
other containing the list of names of candidates who were either for and against RH Law which is the
subject of the case at bar. The names are put in two different categories, Team Patay (pro-RH Law)
and Team Buhay (anti-RH Law). During oral arguments, respondents conceded that the tarpaulin was
neither sponsored nor paid for by any candidate. Petitioners also conceded that the tarpaulin contains
names of candidates for the 2013 elections, but not of politicians who helped in the passage of the RH
Law but were not candidates for that election.

Election Officer of Bacolod City issued a notice to remove campaign materials to the petitioner. The
election officer ordered the tarpaulin’s removal within three (3) days from receipt for being oversized.
COMELEC Resolution No. 9615 provides for the size requirement of two feet (2’) by three feet (3’).
Petitioners replied requesting, among others, that (1) petitioner Bishop be given a definite ruling by
COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of
legal remedies, the tarpaulin be allowed to remain. Respondent issued another letter ordering the
immediate removal of the tarpaulin or it will sue the petitioner for election offense for violating Comelec
Resolution No. 9615 regulating the size of election propaganda materials to nly two feet (2’) by three
feet (3’).

Petitioner initiated a case for it seems that their exercise of free speech was being prosecuted. They
question the mandate of the respondent and that TRO may be issue to enjoin the removal of the said
tarpaulin. The request was granted by the court.

Respondents filed their comment17 arguing that (1) a petition for certiorari and prohibition under Rule
65 of the Rules of Court filed before this court is not the proper remedy to question the notice and letter
of respondents; and (2) the tarpaulin is an election propaganda subject to regulation by COMELEC
pursuant to its mandate under Article IX-C, Section 4 of the Constitution. Hence, respondents claim that
the issuances ordering its removal for being oversized are valid and constitutional.

ISSUE:

- WHETHER IT IS RELEVANT TO DETERMINE WHETHER THE TARPAULINS ARE

- WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH),

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION,

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED

- WON there is a violation of principle of separation of church and state.

The court ruled that it has jurisdiction over the case for the petitioner is not a candidate seeking for
public office but is asserting their fundamental right to expression. The question in the case at bar
pertains to the implementation of COMELEC of its regulatory powers.

The main subject of this case is an alleged constitutional violation: the infringement on speech and the
"chilling effect" caused by respondent COMELEC’s notice and letter. The court ruled the restrictions
imposed by COMELEC affects electorate’s political speech. 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
government 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.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition.
Under the conditions in which it was issued and in view of the novelty of this case, it could result in a
"chilling effect" that would affect other citizens who want their voices heard on issues during
the elections. Other citizens who wish to express their views regarding the election and other
related issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort
to this court is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for
raising grave abuse of discretion. It is clear that the subject matter of the controversy is the effect of
COMELEC’s notice and letter on free speech. This does not fall under Article IX-C, Section 2(3) of the
Constitution. The use of the word "affecting" in this provision cannot be interpreted to mean that
COMELEC has the exclusive power to decide any and all questions that arise during elections.
COMELEC’s constitutional competencies during elections should not operate to divest this court of its
own jurisdiction.

The tarpaulin was not paid for by any candidate or political party. There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law. The notice
of the respondent to the petitioner violates the latter’s ability to give commentary on candidates
for 2013 elections. Also, the tarpaulin posted by the petitioner does not fall under the term
“election campaign” within the Sec. 79 of BP No. 881. 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. The tarpaulin
contains speech on a matter of public concern, that is, a statement of either appreciation or criticism on
votes made in the passing of the RH law. Thus, petitioners invoke their right to freedom of expression.

All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary
and incidental burden on speech must be weighed against a compelling state interest clearly
allowed in the Constitution. The test depends on the relevant theory of speech implicit in the kind of
society framed by our Constitution. Speech is not limited to vocal communication. "Conduct is treated
as a form of speech sometimes referred to as ‘symbolic speech[,]’" such that "‘when ‘speech’ and
‘nonspeech’ elements are combined in the same course of conduct,’ the ‘communicative element’ of the
conduct may be ‘sufficient to bring into play the [right to freedom of expression].’" The right to freedom
of expression, thus, applies to the entire continuum of speech from utterances made to conduct
enacted, and even to inaction itself as a symbolic manner of communication.

The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point. First, it enhances efficiency in communication. A larger
tarpaulin allows larger fonts which make it easier to view its messages from greater distances. Second,
the size of the tarpaulin may underscore the importance of the message to the reader. Third, larger
spaces allow for more messages. Large tarpaulins, therefore, are not analogous to time and place.
They are fundamentally part of expression protected under Article III, Section 4 of the Constitution.

The rights of free expression, free assembly and petition, are not only civil rights but also political rights
essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru
these freedoms the citizens can participate not merely in the periodic establishment of the government
through their suffrage but also in the administration of public affairs as well as in the discipline of
abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate
governmental officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees. Free speech must be protected under the safety
valve theory. It must be protected as a peaceful means of achieving one’s goal, considering the
possibility that repression of nonviolent dissent may spill over to violent means just to drive a point.

Every citizen’s expression with political consequences enjoys a high degree of protection. Respondents
argue that the tarpaulins election propaganda, being petitioners’ way of endorsing candidates who
voted against the RH Law and rejecting those who voted for it. This court has held free speech and
other intellectual freedoms as "highly ranked in our scheme of constitutional values." These
rights enjoy precedence and primacy. We distinguish between political and commercial speech.
Political speech refers to speech "both intended and received as a contribution to public deliberation
about some issue," "fostering informed and civic minded deliberation." On the other hand, commercial
speech has been defined as speech that does "no more than propose a commercial transaction." The
expression resulting from the content of the tarpaulin is, however, definitely political speech.
While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party, or party-list group. Under Sec. 1(4)
of COMELEC Resolution No. 9615 defines scope of “political advertisements” or “election propaganda”
and personal opinions are not included, while sponsored messages are covered.

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed to comply with the maximum size limitation for lawful
election propaganda. Petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial speech. The regulation
may reasonably be considered as either content-neutral or content-based. Regardless, the disposition
of this case will be the same. Generally, compared with other forms of speech, the proposed speech is
content-based. As pointed out by petitioners, the interpretation of COMELEC contained in the
questioned order applies only to posters and tarpaulins that may affect the elections because they
deliver opinions that shape both their choices. It does not cover, for instance, commercial speech. 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.
It also does not fall under the requisites of content neutral to curtail the freedom.

A content-neutral government regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial
governmental interest; [3] if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no greater
than is essential to the furtherance of that interest.

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On the
second requirement, not only must the governmental interest be important or substantial, it must also
be compelling as to justify the restrictions made. The third requisite is likewise lacking. We look not only
at the legislative intent or motive in imposing the restriction, but more so at the effects of such
restriction, if implemented. The restriction must not be narrowly tailored to achieve the purpose. It must
be demonstrable. It must allow alternative avenues for the actor to make speech. In this case, the size
regulation is not unrelated to the suppression of speech. Limiting the maximum size of the tarpaulin
would render ineffective petitioners’ message and violate their right to exercise freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading expressions
with political consequences. These should be encouraged, more so when exercised to make more
meaningful the equally important right to suffrage. The restriction in the present case does not pass
even the lower test of intermediate scrutiny for content-neutral regulations.

This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the content
of one’s speech. This is especially true when the expression involved has political consequences. In
this case, it hopes to affect the type of deliberation that happens during elections. A becoming humility
on the part of any human institution no matter how endowed with the secular ability to decide legal
controversies with finality entails that we are not the keepers of all wisdom.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
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. For this purpose, it will not matter whether the speech is made
with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy. Second, as pointed out in
the concurring opinion of Justice Antonio Carpio, the present law — Section 3.3 of Republic Act No.
9006 and Section 6(c) of COMELEC Resolution No. 9615 — if applied to this case, will not pass the
test of reasonability. A fixed size for election posters or tarpaulins without any relation to the distance
from the intended average audience will be arbitrary. At certain distances, posters measuring 2 by 3
feet could no longer be read by the general public and, hence, would render speech meaningless. It will
amount to the abridgement of speech with political consequences.

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice and
letter violated the right of petitioners to the free exercise of their religion. There are two aspect as to the
Sec. 5, Art. III or the Freedom of Religion. The first is the none establishment clause. Second is the
free exercise and enjoyment of religious profession and worship. In the case at bar, the issue
pertains to the second aspect.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make
such act immune from any secular regulation. The religious also have a secular existence. They exist
within a society that is regulated by law. But not all acts of a bishop amount to religious
expression. This notwithstanding petitioners’ claim that "the views and position of the petitioners, the
Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith,
and moral teachings.

In Estrada v. Escritor, this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies that
take religion specifically into account not to promote the government’s favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion . As
Justice Brennan explained, the "government [may] take religion into account . . . to exempt, when
possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish."

This court also discussed the Lemon test in that case, such that a regulation is constitutional when: (1)
it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not foster
an excessive entanglement with religion.

The tarpaulin does not convey any religious doctrine and appears to be more of a political
speech than of a religious speech. The contention of the petitioner pertaining to religious doctrine is
not applicable upon the courts. The position of the Catholic religion in the Philippines as regards the RH
Law does not suffice to qualify the posting by one of its members of a tarpaulin as religious speech
solely on such basis.

DECISION:
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously
issued is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated
February 22, 2013 and letter dated February 27, 2013 is declared unconstitutional.

SO ORDERED.