102. The Diocese of Bacolod v.

COMELEC
GR No. 205728 | 21 January 2015 | Leonen, J.
Eriz, Aggy | Topic: Campaign & Election Propaganda –– Lawful Propaganda
Case Summary: Petitioners posted 2 tarpaulins within the private compound housing the San Sebastian
Cathedral of Bacolod. They were posted on the front walls of the cathedral within public view. The tarpaulins
expressed the advocacy of Petitioner against the passage of the RH Law and listed the electoral candidates
in the 2013 elections based on their vote on the passage of the said law. Those who voted in favor of the
passaged were named as Team Patay, while those who voted against were named as Team Buhay.
COMELEC issued an order and letter directing petitioners to remove the tarpaulin for failing to comply with
the size requirement under COMELEC Resolution 9615 for campaign materials.

Petitioners filed the present petition arguing that COMELEC’s order and letter were unconstitutional for
violating their right to freedom of expression. On the other hand, COMELEC contended that the tarpaulin is
an election propaganda subject to the regulation by COMELEC pursuant to its mandate under Art. IX-C, Sec.
4 of the Constitution. Hence, the issuances in question are valid and constitutional.

SC held that all of the provisions and jurisprudence cited by Respondent pertain to candidates and political
parties. Petitioners are not candidates. Neither do they belong to any political party. COMELEC does not
have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a
non-candidate in this case. In this case, 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.

Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines an
"election campaign" to refer to an act designed to promote the election or defeat of a particular candidate or
candidates to a public office. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office." In this case, 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.
Petitioners: The Diocese of Bacolod and Rev. Bishop Vicente Navarra; Respondents: COMELEC and Election Officer
Atty. Mavil Majarucon

Facts:
1. Petitioners posted 2 tarpaulins within the private compound housing the San Sebastian Cathedral of
Bacolod. They were posted on the front walls of the cathedral within public view and were
approximately 6 ft. by 10 ft. in size.
a. 1st Tarpaulin – contains the message “IBASURA RH Law”
b. 2nd Tarpaulin [subject matter of the present case] – contains the hearing “Conscience Vote”
and lists the electoral candidates for the 2013 elections as either “Team Buhay” (for those who
voted against the passing of the RH Law) or “Team Patay” (for those who voted for the passing
of the RH Law)
i. The tarpaulin was neither sponsored nor paid for by any candidate. It contained the
names only of the candidates of the 2013 elections, and not of the politicians who helped
in the passage of the RH Law but were not candidates.
2. Respondent Atty. Mavil Majarucon (Election Officer) issued a Notice to Remove Campaign Materials for
being oversized. COMELEC Resolution 9615 provides for the size requirement of 2 ft. by 3 ft.
a. Petitioners replied requesting that (1) the Bishop be given a definite ruling by COMELEC and (2)
pending the opinion and the availment of legal remedies, the tarpaulin be allowed to remain.
3. COMELEC Law Department issued a Letter ordering the immediate removal of the tarpaulin; otherwise,
it will be constrained to file an election offense against Petitioners.
 4. Concerned about the threat of prosecution, Petitioners then initiated the present case for certiorari and
prohibition praying (1) for the issuance of a TRO restraining Respondents from enforcing their orders of
removal and (2) for the declaration of the said orders as unconstitutional and void. SC issued a TRO.
5. Respondent filed their comment:
a. Petition for certiorari and prohibition is NOT the proper remedy to question the notice and the
letter;
b. The tarpaulin is an election propaganda subject to the regulation by COMELEC pursuant
to its mandate under Art. IX-C, Sec. 4 of the Constitution. Hence, the issuances in
question are valid and constitutional.

Issue/s and Holding: W/N COMELEC has the competence to limit expressions made by the citizens — who
are not candidates — during elections? No.

A. COMELEC had no legal basis to regulate expressions made by private citizens

1. Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin. However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do they belong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.

a. Respondents cite Article IX-C, Section 4 of the Constitution:

The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, . . . Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and
the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible
elections.

b. SC in Sanidad v. COMELEC found that "[m]edia practitioners exercising their freedom of

expression during plebiscite periods are neither the franchise holders nor the candidates[,]"
thus, their right to expression during this period may not be regulated by COMELEC.
Sanidad involved the rules promulgated by COMELEC during the plebiscite for the creation of the Cordillera
Autonomous Region. Columnist Pablito V. Sanidad questioned the provision prohibiting journalists from
covering plebiscite issues on the day before and on plebiscite day. Sanidad argued that the prohibition was
a violation of the "constitutional guarantees of the freedom of expression and of the press. . . ." SC held that
the "evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give
any undue advantage to a candidate in terms of advertising space or radio or television time."

c. Respondents cite Article IX-C, Section 2 (7) of the Constitution:

The Commission on Elections shall exercise the following powers and functions: . . . (7) Recommend to the
Congress effective measures to minimize election spending, including limitation of places where
propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates.

d. Section 9 of the Fair Election Act on the posting of campaign materials only mentions
"parties" and "candidates":
Sec. 9. Posting of Campaign Materials. — The COMELEC may authorize political parties and party-list
groups to erect common poster areas for their candidates in not more than ten (10) public places such as
plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit election
propaganda: Provided, That the size of the poster areas shall not exceed twelve (12) by sixteen (16) feet or
its equivalent. Independent candidates with no political parties may likewise be authorized to erect common
poster areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6)
feet or its equivalent. Candidates may post any lawful propaganda material in private places with the
consent of the owner thereof, and in public places or property which shall be allocated equitably and
impartially among the candidates

e. Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations
implementing the Fair Election Act, provides:
 SECTION 17. Posting of Campaign Materials. — Parties and candidates may post any lawful campaign
material in: . .

f. Section 3 of RA No. 9006 on "Lawful Election Propaganda" also states that these are:
"allowed for all registered political parties, national, regional, sectoral parties or organizations participating
under the party-list elections and for all bona fide candidates seeking national and local elective positions
subject to the limitation on authorized expenses of candidates and politica parties. . . ."

g. Section 6 of COMELEC Resolution No. 9615 provides for a similar wording.

2. Some level of coordination with the candidates and political parties for whom the election propaganda
are released would ensure that these candidates and political parties maintain within the authorized
expenses limitation.
a. In this case, 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.

3. Respondents also cite National Press Club v. COMELEC in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period. However,
this case does not apply as most of the petitioners were electoral candidates, unlike petitioners
in the instant case. Moreover, the subject matter of National Press Club, Section 11 (b) of RA No.
6646, only refers to a particular kind of media such as newspapers, radio broadcasting, or television.
a. National Press Club involved the prohibition on the sale and donation of space and time for
political advertisements, limiting political advertisements to COMELEC-designated space and
time. This case was brought by representatives of mass media and two candidates for office in
the 1992 elections. They argued that the prohibition on the sale and donation of space and time
for political advertisements is tantamount to censorship, which necessarily infringes on the
freedom of speech of the candidates. SC upheld the constitutionality of the COMELEC
prohibition.
b. Compared to Sanidad wherein the columnists lost their ability to give their commentary on the
issues involving the plebiscite, National Press Club does not involve the same infringement. In
this case, petitioners lost their ability to give a commentary on the candidates for the
2013 national elections because of the COMELEC notice and letter. It was not merely a
regulation on the campaigns of candidates vying for public office.

4. Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines
an "election campaign" as follows:
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations,
associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any
campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against
a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election
of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or
oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as
election campaign or partisan election activity.

Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or

criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not
be construed as part of any election campaign or partisan political activity contemplated under this Article.
 a. The tarpaulin does NOT fall within the definition of an election campaign. The focus of the
definition is that the act must be "designed to promote the election or defeat of a particular
candidate or candidates to a public office." In this case, 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.

B. When may private speech amount to election paraphernalia

1. The scope of the guarantee of free expression takes into consideration the constitution respect for
human potentiality and the effect of speech. On the other hand, a complete guarantee muse also take
into consideration the effects it will have in a deliberative democracy.
a. Skewed distribution of resources as well as the cultural hegemony of the majority may have the
affect of drowning out the speech and the messages of those in the minority. In a sense, social
inequality does have its effect on the exercise and effect of the guarantee of free speech.
2. The traditional view has been to tolerate the viewpoint of the speaker and the content of their speech.
This view restricts public officials to make judgments of the value of such viewpoint or message
content.
a. However, the requirements of the Constitution regarding equality in opportunity must provide
limits to some expression during electoral campaigns.
b. Thus, regulation of speech in the context of electoral campaigns made by candidates or
members of their political parties may be regulated as to time, place, and manner.
3. Regulation of speech in the context of electoral campaigns made by persons who are not candidates or
who do not speak as members of a political party, which are, taken as a whole, principally advocacies
of a social issue which the public must consider during elections is unconstitutional. But this does not
mean that there cannot be a specie of speech by a private citizen which will not amount to election
paraphernalia which may be validly regulated by law.
a. 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 ,
only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only.
b. In such a case, the regulation:
i. should be provided by law,
ii. Reasonable,
iii. 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
iv. demonstrably the least restrictive means to achieve that object.
c. 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.
4. In this case, the principal message of the twin tarpaulins of petitioners consists of a social advocacy.
a. Moreover, the present law (Sec. 3.3, RA9006 and Sec. 6(c), COMELEC Resolution 9615) if
applied in 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.
b. 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.

Ruling: 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.

C. Re: Justice Brion’s dissenting opinion

1. In Justice Brion's dissenting opinion, he discussed that "[t]he 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." He adds that "
[w]hile indeed the RH issue, by itself, is not an electoral matter, 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."
a. 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.
b. Section 1 (4) of COMELEC Resolution No. 9615, or the rules and regulations implementing RA No.
9006 suggests that personal opinions are not included, while sponsored messages are covered.
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 is capable 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 micro-blogging sites, in return for
consideration, or otherwise capable of pecuniary estimation.

c. The last paragraph of Section 1 (1) of COMELEC Resolution No. 9615 states:
Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered acts of election
campaigning or partisan political activity unless expressed by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional Commissions, and members of the Civil Service.

d. In any event, this case does not refer to speech in cyberspace, and its effects and parameters should
be deemed narrowly tailored only in relation to the facts and issues in this case. It also appears that
such wording in COMELEC Resolution No. 9615 does not similarly appear in RA No. 9006, the law it
implements. We should interpret in this manner because of the value of political speech
e. SC then cited various jurisprudence emphasizing the importance of allowing citizens to air their
grievances and speak constructive criticisms against their government as this contributes to every
society’s goal for development. Speech with political consequences is at the core of the freedom of
expression and must be protected.

2. Justice Brion also pointed out that freedom of expression is not the god of rights to which all other rights
and even government protection of state interest must bow.
a. SC held that the right to freedom of expression is indeed not absolute. The degree of restriction may
depend on whether the regulation is content-based or content-neutral.
b. COMELEC contends that the order for removal is content-neutral and was made simply because
petitioners failed to comply with the size limitation. Petitioners, on the other hand, argues that the said
requirement is content-based as it applies only to political speech and not to other forms of speech
such as commercial speech.
c. SC held that the regulation may be reasonably considered as either content-neutral or content-based.
Regardless, the disposition of the case will be the same.
d. 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.
i. Worse, COMELEC does not point to a definite view of what kind of expression of non-
candidates will be adjudged as "election paraphernalia." There are no existing bright lines to
categorize speech as election-related and those that are not. COMELEC’s discretion to limit
speech is fundamentally unbridled.
ii. Content-based regulation bears a heavy presumption of invalidity, and this court has used the
clear and present danger rule as measure.
 iii. Under this rule, "the evil consequences sought to be prevented must be substantive, 'extremely
serious and the degree of imminence extremely high.” 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.
iv. Even with the clear and present danger test, respondents failed to justify the regulation. There is
no compelling and substantial state interest endangered by the posting of the tarpaulin as to
justify curtailment of the right of freedom of expression.

D. Re: Justice Carpio and Justice Perlas-Bernabe concurring opinion

1. They suggest that the provisions imposing a size limit for tarpaulins are content-neutral regulations as these
"restrict the manner by which speech is relayed but not the content of what is conveyed."
a. If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not
pass the three requirements for evaluating such restraints on freedom of speech.
a. ”When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity," and it is subject only to the intermediate
approach. 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.
b. On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. This is protected speech by petitioners who are non-candidates.
c. 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.
i. Compelling governmental interest would include constitutionally declared principles. SC has
held, for example, that "the welfare of children and the State's mandate to protect and care for
them, as parens patriae, constitute a substantial and compelling government interest in
regulating . . . utterances in TV broadcast."
ii. Respondent invokes its constitutional mandate to ensure equal opportunity for public
information campaigns among candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.
iii. Justice Brion discussed that "[s]ize 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[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage
against candidates with more humble financial capabilities."
iv. First, this interest is "not as important as the right of [a private citizen] to freely express
his choice and exercise his right of free speech." (Adiong v. COMELEC) In any case, faced
with both rights to freedom of speech and equality, a prudent course would be to "try to resolve
the tension in a way that protects the right of participation." Second, the pertinent election
laws related to private property only require that the private property owner's consent be
obtained when posting election propaganda in the property. This is consistent with the
fundamental right against deprivation of property without due process of law. The present facts
do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.
v. Respondents likewise cite the Constitution on their authority to recommend effective measures
to minimize election spending, specifically, Article IX-C, Section 2 (7)1 This does not qualify
as a compelling and substantial government interest to justify regulation of the preferred
right to freedom of expression.

1 Sec. 2. The Commission on Elections shall exercise the following powers and functions: xxx xxx xxx (7) Recommend to
the Congress effective measures to minimize election spending, including limitation of places where propaganda materials
shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates
 vi. As petitioners pointed out, the size limitation will not serve the objective of minimizing election
spending considering there is no limit on the number of tarpaulins that may be posted.
d. On the third requisite, 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.
e. The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.