Wilfred P.

Alfeche

Topic: Rules on Candidacy- Campaign and Election Propaganda

Reference: Dioscese of Bacolod vs. COMELEC; G. R. No. 205728. January 21, 2015

Facts:
On February 21, 2103, petitioners posted two tarpaulins within a private compound
housing which contains the message “IBASURA RH LAW” and TEAM BUHAY and
TEAM PATAY” on the other one. Election Officer of Bacolod issued a Notice to Remove
Campaign Materials addressed to petitioner for being oversized. 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.

Concerned about imminent threat of prosecution for their exercise of free speech,
petitioners initiated a petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order. Respondents on the other hand, argued that
the tarpaulin is an election propaganda subject to regulation by COMELEC pursuant to
its mandate under the Constitution.

Issues:
1. Whether or not such regulation is a limitation on political speech and a violation of
freedom of speech and expression.
2. Whether or not COMELEC has jurisdiction over private property.

Ruling:
1. YES. 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. 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
Wilfred P. Alfeche

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.
2. NO. COMELEC had no legal basis to regulate expressions made by private citizens
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 These provisions show that election propaganda refers to
matter done by or on behalf of and in coordination with candidates and political
parties. Some level of coordination with the candidates and political parties for
whom the election propaganda are released would ensure that these candidates
and political parties maintain within the authorized expenses limitation. The tarpaulin
was not paid for by any candidate or political party. 125 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.
Wilfred P. Alfeche

Topic: Rules on Candidacy- Campaign and Election Propaganda

Reference: GMA Network, Inc. vs. COMELEC; G.R. No. 205357. September 2, 2014

Facts:
Congress passed R.A. No. 9006, otherwise known as the Fair Election Act and as
provided Sec. 6. Equal Access to Media Time and Space. — All registered parties and
bona fide candidates shall have equal access to media time and space. The following
guidelines may be amplified on by the COMELEC:

6.2 (a) Each bona fide candidate or registered political party for a nationally elective
office shall be entitled to not more than one hundred twenty (120) minutes of television
advertisement and one hundred eighty (180) minutes of radio advertisement whether by
purchase or donation.

b. Each bona fide candidate or registered political party for a locally elective office shall
be entitled to not more than sixty (60) minutes of television advertisement and ninety
(90) minutes of radio advertisement whether by purchase or donation. For this purpose,
the COMELEC shall require any broadcast station or entity to submit to the COMELEC
a copy of its broadcast logs and certificates of performance for the review and
verification of the frequency, date, time and duration of advertisements broadcast for
any candidate or political party.

Petitioners assail that limiting the broadcast and radio advertisements of candidates and
political parties for national and local election to an aggregate total of 120 minutes and
180 minutes , respectively as provided in COMELEC Reso. No. 9615 violates freedom
of the press, impairs the people’s right to suffrage as well as their right to information
relative to the exercise of their right to choose who to elect during the forthcoming
elections.

Issues:
Whether or not such resolution is constitutional.
Wilfred P. Alfeche

Ruling:
NO. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against
the constitutional guaranty of freedom of expression, of speech and of the press.
Political speech is one of the most important expressions protected by the Fundamental
Law. "freedom of speech, of expression, and of the press are at the core of civil liberties
and have to be protected at all costs for the sake of democracy."

Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage.

Fundamental to the idea of a democratic and republican state is the right of the people
to determine their own destiny through the choice of leaders they may have in
government. Candidates and political parties need adequate breathing space —
including the means to disseminate their ideas. This could not be reasonably addressed
by the very restrictive manner by which the respondent implemented the time limits in
regard to political advertisements in the broadcast media.

The COMELEC went beyond the authority granted it by the law in adopting "aggregate"
basis in the determination of allowable airtime. As Section 6 of R.A. 9006 is presently
worded, it can be clearly seen that the legislature intended the aggregate airtime limits
to be computed on per candidate or party basis.

With more reason here since the COMELEC not only reworded or rephrased the
statutory provision — _it practically replaced it with its own idea of what the law should
be, a matter that certainly is not within its authority.
Wilfred P. Alfeche

Topic: Rules on Candidacy- Campaign and Election Propaganda

Reference: SWS, Inc. and Kamahalan Publishing Corp. vs. COMELEC

Facts:
Petitioner, Social Weather Stations, Inc. (SWS) is a private non-stock, non-profit social
research institution conducting surveys in various fields. On the other hand, petitioner
Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of
general circulation.

Petitioners brought this action for prohibition to enjoin the Commission on Elections
from enforcing Section 5.4 of RA. No.9006 (Fair Election Act), which provides that:
“Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election”.

Petitioners argue that the restriction on the publication of election survey results
constitutes a prior restraint on the exercise of freedom of speech without any clear and
present danger to justify such restraint. They claim that SWS and other pollsters
conducted and published the results of surveys prior to the 1992, 1995, and 1998
elections up to as close as two days before the election day without causing confusion
among the voters and that there is neither empirical nor historical evidence to support
the conclusion that there is an immediate and inevitable danger to tile voting process
posed by election surveys. No similar restriction is imposed on politicians from
explaining their opinion or on newspapers or broadcast media from writing and
publishing articles concerning political issues up to the day of the election. They
contend that there is no reason for ordinary voters to be denied access to the results of
election surveys, which are relatively objective.

Respondent Commission on Elections justifies the restrictions in Sec. 5.4 of R.A. No.
9006 as necessary to prevent the manipulation and corruption of the electoral process
by unscrupulous and erroneous surveys just before the election. It contends that (1) the
Wilfred P. Alfeche

prohibition on the publication of election survey results during the period proscribed by
law bears a rational connection to the objective of the law, i.e., the prevention of the
debasement of the electoral process resulting from manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the restriction
being limited both in duration, i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does not prohibit election survey
results but only require timeliness.

Issues:
Whether or not Section 5.4 of RA 9006 constitutes an unconstitutional abridgment of
freedom of speech, expression and the press.

Ruling:
Yes. The Supreme Court borrowed a test used by the United States Supreme Court to
determine the constitutionality of Section 5.4.

The United States Supreme Court, through Chief Justice Warren, held in United States
v. O 'Brien: A 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 incidental restriction on alleged First Amendment freedoms of speech,
expression and press is no greater than is essential to the furtherance of that
interest.

This is so far the most influential test for distinguishing content-based from content
neutral regulations and is said to have "become canonical in the review of such laws." is
noteworthy that the O 'Brien test has been applied by this Court in at least two cases
First. Sec. 5.4 fails to meet the third criterion of the O 'Brien test because the causal
connection of expression to the asserted governmental interest makes such interest
Wilfred P. Alfeche

"not related to the suppression of free expression." By prohibiting the publication of

election survey results because of the possibility that such publication might undermine
the integrity of the election, Section 5.4 actually suppresses a whole class of
expression, while allowing the expression of opinion concerning the same subject
matter by newspaper columnists, radio and TV commentators, armchair theorists, and
other opinion takers Even if the governmental interest sought to be promoted is
unrelated to the suppression of speech and the resulting restriction of free expression is
only incidental, Section 5.4 nonetheless fails to meet the fourth criterion of the O'Brien
test, namely, that the restriction be not greater than is necessary to further the
governmental interest. As already stated, Section 5.4 aims at the prevention of last-
minute pressure on voters, the creation of bandwagon effect, "junking" of weak or
"losing" candidates, and resort to the form of election cheating called "dagdag-bawas."
Praiseworthy as these aims of the regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression, when such aim can be more narrowly
pursued by punishing unlawful acts, rather than speech because of apprehension that
such speech creates the danger of such evils To summarize then, we hold that Section
5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it
is a direct and total suppression of a category of expression even though such
suppression is only for a limited period, and (3) the governmental interest sought to be
promoted can be achieved by means other than suppression of freedom of expression.