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758 Phil. 67

EN BANC
[ G.R. No. 206020, April 14, 2015 ]
1-UNITED TRANSPORT KOALISYON (1-UTAK), PETITIONER, VS.
COMMISSION ON ELECTIONS, RESPONDENT.
DECISION
REYES, J.:

The right to participate in electoral processes is a basic and fundamental right in any
democracy. It includes not only the right to vote, but also the right to urge others to vote
for a particular candidate. The right to express one's preference for a candidate is likewise
part of the fundamental right to free speech. Thus, any governmental restriction on the
right to convince others to vote for a candidate carries with it a heavy presumption of
invalidity.

This is a petition for certiorari[1] under Rule 64 and Rule 65 of the Rules of Court filed by
1-United Transport Koalisyon (petitioner), a party-list organization, assailing Section 7(g)
items (5) and (6), in relation to Section 7(f), of Resolution No. 9615[2] of the Commission
on Elections (COMELEC).

The Facts

On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the "Fair
Elections Act", was passed. Section 9 thereof provides:

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.

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On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided
for the rules implementing R.A. No. 9006 in connection with the May 13, 2013 national
and local elections and subsequent elections. Section 7 thereof, which enumerates the
prohibited forms of election propaganda, pertinently provides:

SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign

period, it is unlawful:

xxx xxx xxx

(f) To post, display or exhibit any election campaign or propaganda material

outside of authorized common poster areas, in public places, or in private
properties without the consent of the owner thereof.

(g) Public places referred to in the previous subsection (f) include any of the
following:

xxx xxx xxx

5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs,

ferries, pedicabs and tricycles, whether motorized or not;

6. Within the premises of public transport terminals, such as bus

terminals, airports, seaports, docks, piers, train stations, and the
like.

The violation of items [5 and 6] under subsection (g) shall be a cause for the
revocation of the public utility franchise and will make the owner and/or
operator of the transportation service and/or terminal liable for an election
offense under Section 9 of Republic Act No. 9006 as implemented by Section
18 (n) of these Rules.[3]

In its letter[4] dated January 30, 2013, the petitioner, through its president, Melencio F.
Vargas, sought clarification from the COMELEC as regards the application of Resolution
No. 9615, particularly Section 7(g) items (5) and (6), in relation to Section 7(f), vis-a-vis
privately owned public utility vehicles (PUVs) and transport terminals. The petitioner
explained that the prohibition stated in the aforementioned provisions impedes the right to
free speech of the private owners of PUVs and transport terminals. The petitioner then
requested the COMELEC to reconsider the implementation of the assailed provisions and
allow private owners of PUVs and transport terminals to post election campaign materials
on their vehicles and transport terminals.

On February 5, 2013, the COMELEC en banc issued Minute Resolution No. 13-0214,[5]
which denied the petitioner's request to reconsider the implementation of Section 7(g)
items (5) and (6), in relation to Section 7(f), of Resolution No. 9615. The COMELEC en
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banc, adopting the recommendation of Commissioner Christian Robert S. Lim, opined

that:

From the foregoing, x x x the primary fact in consideration here is actually

whether 1 -UTAK or any other [PUV] owners in the same position do in fact
possess a franchise and/or certificate of public convenience and operate as
a public utility. If it does not, then the ruling in Adiong applies squarely. If it
does, then its operations, pursuant to Section 4, Article IX-C of the
Constitution, will be placed directly under the supervision and regulation of the
Commission for the duration of the election period so as to ensure equality of
opportunity, time, and space for all candidates in the placement of political
advertisements. Having placed their property for use by the general public and
having secured a license or permit to do so, 1-UTAK and other PUV owners, as
well as transport terminal owners, cannot now complain that their property is
subject to regulation by the State. Securing a franchise or a certificate of public
convenience in their favor does not exempt them from the burdens imposed by
the Constitution, Republic Act No. 9006 x x x, and other related statutes. It
must be stressed that the Constitution itself, under Section 6, Article XII,
commands that the use of property bears a social function and all economic
agents shall contribute to the common good; and there is no higher Common
good than that as espoused in R.A. No. 9006 - the equalization of opportunities
for all candidates for political office during elections - a policy which Res. No.
9615 merely implements.

As required in Adiong, and in compliance with the O'Brien standards, the

prohibition furthers two important and substantial governmental interests -
equalizing opportunity, time, and space for all candidates, and putting to a stop
excessive campaign spending. The regulation bears a clear and reasonable
nexus with these Constitutionally- and statutorily-sanctioned objectives, and
the infringement of freedom is merely incidental and limited as to time. The
Commission has not taken away all avenues of expression available to PUV
and transport terminal owners. They may express their political preferences
elsewhere.

The exact purpose for placing political advertisements on a PUV or in transport

terminals is exactly because it is public and can be seen by all; and although
it is true that private vehicles ply the same route as public vehicles, the
exposure of a [PUV] servicing the general, riding public is much more
compared to private vehicles. Categorizing PUVs and transport terminals as
'public places' under Section 7 (f) of Reso. No. 9615 is therefore logical.
The same reasoning for limiting political advertisements in print media, in
radio, and in television therefore holds true for political advertisements in
PUVs and transport terminals.[6]

Hence, the instant petition.

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Arguments of the Petitioner

The petitioner maintains that Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 violate the right to free speech of the owners of PUVs and transport
terminals; that the prohibition curtails their ideas of who should be voted by the public.
The petitioner also claims that there is no substantial public interest threatened by the
posting of political advertisements on PUVs and transport terminals to warrant the
prohibition imposed by the COMELEC. Further, the petitioner posits that the ownership of
the PUVs per se, as well as the transport terminals, remains private and, hence, the owners
thereof could not be prohibited by the COMELEC from expressing their political opinion
lest their property rights be unduly intruded upon.

Further, assuming that substantial public interest exists in the said prohibition imposed
under Resolution No. 9615, the petitioner claims that the curtailment of the right to free
speech of the owners of PUVs and transport terminals is much greater than is necessary to
achieve the desired governmental purpose, i.e., ensuring equality of opportunity to all
candidates in elective office.

Arguments of COMELEC

On the other hand, the COMELEC posits that privately-owned PUVs and transport
terminals are public spaces that are subject to its regulation. It explains that under the
Constitution, the COMELEC has the power to enforce and administer all laws and
regulations relative to the conduct of an election, including the power to regulate the
enjoyment or utilization of all franchises and permits for the operation of transportation
utilities.

The COMELEC points out that PUVs and private transport terminals hold a captive
audience - the commuters, who have no choice but be subjected to the blare of political
propaganda. Thus, the COMELEC avers, it is within its constitutional authority to prevent
privately-owned PUVs and transport terminals from concurrently serving campaign
materials to the captive audience that they transport.

The COMELEC further claims that Resolution No. 9615 is a valid content-neutral
regulation and, thus, does not impinge on the constitutional right to freedom of speech. It
avers that the assailed regulation is within the constitutional power of the COMELEC
pursuant to Section 4, Article IX-C of the Constitution. The COMELEC alleges that the
regulation simply aims to ensure equal campaign opportunity, time, and space for all
candidates - an important and substantial governmental interest, which is totally unrelated
to the suppression of free expression; that any restriction on free speech is merely
incidental and is no greater than is essential to the furtherance of the said governmental
interest.

The Issue

The petitioner presents the following issues for the Court's resolution:

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I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE

SPEECH OF THE OWNERS OF [PUVs] AND TRANSPORT TERMINALS.

II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO

FREE SPEECH AND EXPRESSION FOR FAILURE TO SATISFY THE
O'BRIEN TEST.

III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN

EQUAL OPPORTUNITY TO INFORM THE ELECTORATE IS NOT
IMPAIRED BY POSTING POLITICAL ADVERTISEMENTS ON PUVs
AND TRANSPORT TERMINALS.

IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND

INDEPENDENT FROM THE FRANCHISE OR OPERATION OF THE
PUBLIC UTILITY, THE FORMER BEING BEYOND THE POWER OF
REGULATION BY THE COMELEC.[7]

In sum, the issue presented for the Court's resolution is whether Section 7(g) items (5) and
(6), in relation to Section 7(f), of Resolution No. 9615, which prohibits the posting of any
election campaign or propaganda material, inter alia, in PUVs and public transport
terminals are valid regulations.

Ruling of the Court

The petition is meritorious.

Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C of the
Constitution and the provisions of R.A. No. 9006, lays down the administrative rules
relative to the COMELEC's exercise of its supervisory and regulatory powers over all
franchises and permits for the operation of transportation and other public utilities, media
of communication or information, and all grants, special privileges, or concessions granted
by the Government.

Like any other administrative regulations, Resolution No. 9615, or any part thereof, must
not run counter to the Constitution. It is basic that if a law or an administrative rule
violates any norm of the Constitution, that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must conform; no act shall be valid if it
conflicts with the Constitution.[8] In this regard, an administrative regulation, even if it
purports to advance a legitimate governmental interest, may not be permitted to run
roughshod over the cherished rights of the people enshrined in the Constitution.

Section 7(g) items (5) and (6), in

relation to Section 7(f), of Resolution
No. 9615 are prior restraints on speech.

Free speech may be identified with the liberty to discuss publicly and truthfully any matter
of public concern without prior restraint or censorship and subsequent punishment.[9] Prior
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restraint refers to official governmental restrictions on the press or other forms of

expression in advance of actual publication or dissemination. Freedom from prior restraint
is largely freedom from government censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the executive, legislative or judicial
branch of the government.[10] Any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its validity.[11]

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly
infringe on the fundamental right of the people to freedom of speech. Central to the
prohibition is the freedom of individuals, i.e., the owners of PUVs and private transport
terminals, to express their preference, through the posting of election campaign material in
their property, and convince others to agree with them.

Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign
material during an election period in PUVs and transport terminals carries with it the
penalty of revocation of the public utility franchise and shall make the owner thereof liable
for an election offense. The prohibition constitutes a clear prior restraint on the right to
free expression of the owners of PUVs and transport terminals. As a result of the
prohibition, owners of PUVs and transport terminals are forcefully and effectively
inhibited from expressing their preferences under the pain of indictment for an election
offense and the revocation of their franchise or permit to operate.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press
enjoys a preferred status in our hierarchy of rights. The rationale is that the preservation of
other rights depends on how well we protect our freedom of speech and of the press.[12] It
has been our constant holding that this preferred freedom calls all the more for utmost
respect when what may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage.[13]

Thus, in Adiong v. COMELEC,[14] the Court struck down the COMELEC's prohibition
against the posting of decals and stickers on "mobile places." The Court ratiocinated that:

Significantly, the freedom of expression curtailed by the questioned prohibition

is not so much that of the candidate or the political party. The regulation
strikes at the freedom of 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 case, the Court
was careful to rule out restrictions on reporting by newspaper 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.[15] (Emphases ours)

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The assailed prohibition on posting

election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.

The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615
may incidentally restrict the right to free speech of owners of PUVs and transport
terminals, the same is nevertheless constitutionally permissible since it is a valid content-
neutral regulation.

The Court does not agree.

A content-neutral regulation, i.e., which is merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and under well-defined
standards,[16] is constitutionally permissible, even if it restricts the right to free speech,
provided that the following requisites concur: first, the government regulation is within the
constitutional power of the Government; second, it furthers an important or substantial
governmental interest; third, the governmental interest is unrelated to the suppression of
free expression; and fourth, the incidental restriction on freedom of expression is no
greater than is essential to the furtherance of that interest.[17]

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations since
they merely control the place where election campaign materials may be posted. However,
the prohibition is still repugnant to the free speech clause as it fails to satisfy all of the
requisites for a valid content-neutral regulation.

It is conceded that Resolution No. 9615, including the herein assailed provisions, furthers
an important and substantial governmental interest, i.e., ensuring equal opportunity, time
and space among candidates aimed at the holding of free, orderly, honest, peaceful, and
credible elections. It is further conceded that the governmental interest in imposing the
said prohibition is unrelated to the suppression of free expression. However, Section 7(g)
items (5) and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the
Constitution. Also, there is absolutely no necessity to restrict the right to free speech of the
owners of PUVs and transport terminals.

The COMELEC may only regulate

the franchise or permit to operate
and not the ownership per se of
PUVs and transport terminals.

The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 is not within the COMELEC's constitutionally delegated power of
supervision or regulation. It is not disputed that the COMELEC has the power to supervise
or regulate the enjoyment or utilization of all franchises or permits for the operation of
transportation utilities during an election period. Section 4, Article IX-C of the

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Constitution, thus provides:

Section 4. 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, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. 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.

Nevertheless, the constitutional grant of supervisory and regulatory powers to the

COMELEC over franchises and permits to operate, though seemingly unrestrained, has its
limits. Notwithstanding the ostensibly broad supervisory and regulatory powers granted to
the COMELEC during an election period under Section 4, Article IX-C of the
Constitution, the Court had previously set out the limitations thereon. In Adiong, the
Court, while recognizing that the COMELEC has supervisory power vis-a-vis the conduct
and manner of elections under Section 4, Article IX-C of the Constitution, nevertheless
held that such supervisory power does not extend to the very freedom of an individual to
express his preference of candidates in an election by placing election campaign stickers
on his vehicle.

In National Press Club v. COMELEC,[18] while the Court upheld the constitutionality of a
prohibition on the selling or giving free of charge, except to the COMELEC, of advertising
space and commercial time during an election period, it was emphasized that the grant of
supervisory and regulatory powers to the COMELEC under Section 4, Article IX-C of the
Constitution, is limited to ensuring equal opportunity, time, space, and the right to reply
among candidates.

Further, in Social Weather Stations, Inc. v. COMELEC,[19] the Court, notwithstanding the
grant of supervisory and regulatory powers to the COMELEC under Section 4, Article IX-
C of the Constitution, declared unconstitutional a regulation prohibiting the release of
election surveys prior to the election since it "actually suppresses a whole class of
expression, while allowing the expression of opinion concerning the same subject matter
by newspaper columnists, radio and [television (TV)] commentators, armchair theorists,
and other opinion makers."[20]

In the instant case, the Court further delineates the constitutional grant of supervisory and
regulatory powers to the COMELEC during an election period. As worded, Section 4,
Article IX-C of the Constitution only grants COMELEC supervisory and regulatory
powers over the enjoyment or utilization "of all franchises or permits for the operation,"
inter alia, of transportation and other public utilities. The COMELEC's constitutionally
delegated powers of supervision and regulation do not extend to the ownership per se of
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PUVs and transport terminals, but only to the franchise or permit to operate the same.

There is a marked difference between the franchise or permit to operate transportation for
the use of the public and the ownership per se of the vehicles used for public transport.
Thus, in Tatad v. Garcia, Jr.,[21] the Court explained that:

What private respondent owns are the rail tracks, rolling stocks like the
coaches, rail stations, terminals and the power plant, not a public utility. While
a franchise is needed to operate these facilities to serve the public, they do not
by themselves constitute a public utility. What constitutes a public utility is not
their ownership but their use to serve the public x x x.

The Constitution, in no uncertain terms, requires a franchise for the operation

of a public utility. However, it does not require a franchise before one can own
the facilities needed to operate a public utility so long as it does not operate
them to serve the public.

xxx xxx xxx

In law, there is a clear distinction between the "operation" of a public

utility and the ownership of the facilities and equipment used to serve the
public.

xxx xxx xxx

The right to operate a public utility may exist independently and

separately from the ownership of the facilities thereof. One can own said
facilities without operating them as a public utility, or conversely, one may
operate a public utility without owning the facilities used to serve the
public. The devotion of property to serve the public may be done by the owner
or by the person in control thereof who may not necessarily be the owner
thereof.

This dichotomy between the operation of a public utility and the ownership of
the facilities used to serve the public can be very well appreciated when we
consider the transportation industry. Enfranchised airline and shipping
companies may lease their aircraft and vessels instead of owning them
themselves.[22] (Emphases ours)

The franchise or permit to operate transportation utilities is a privilege granted to certain

persons to engage in the business of transporting people or goods; it does not refer to the
ownership of the vehicle per se. Ownership is a relation in private law by virtue of which a
thing pertaining to one person is completely subjected to his will in everything not
prohibited by public law or the concurrence with the rights of another.[23] Thus, the owner
of a thing has the right to enjoy and dispose of a thing, without other limitations than those
established by law.[24]
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One such limitation established by law, as regards PUVs, is the franchise or permit to
operate. However, a franchise or permit to operate a PUV is a limitation only on certain
aspects of the ownership of the vehicle pertinent to the franchise or permit granted, but not
on the totality of the rights of the owner over the vehicle. Otherwise stated, a restriction on
the franchise or permit to operate transportation utilities is necessarily a limitation on
ownership, but a limitation on the rights of ownership over the PUV is not necessarily a
regulation on the franchise or permit to operate the same.

A franchise or permit to operate transportation utilities pertains to considerations affecting

the operation of the PUV as such, e.g., safety of the passengers, routes or zones of
operation, maintenance of the vehicle, of reasonable fares, rates, and other charges, or, in
certain cases, nationality.[25] Thus, a government issuance, which purports to regulate a
franchise or permit to operate PUVs, must pertain to the considerations affecting its
operation as such. Otherwise, it becomes a regulation or supervision not on the franchise
or permit to operate, but on the very ownership of the vehicle used for public transport.

The expression of ideas or opinion of an owner of a PUV, through the posting of election
campaign materials on the vehicle, does not affect considerations pertinent to the operation
of the PUV. Surely, posting a decal expressing support for a certain candidate in an
election will not in any manner affect the operation of the PUV as such. Regulating the
expression of ideas or opinion in a PUV, through the posting of an election campaign
material thereon, is not a regulation of the franchise or permit to operate, but a regulation
on the very ownership of the vehicle.

The dichotomy between the regulation of the franchise or permit to operate of a PUV and
that of the very ownership thereof is better exemplified in the case of commercial
advertisements posted on the vehicle. A prohibition on the posting of commercial
advertisements on a PUV is considered a regulation on the ownership of the vehicle per
se; the restriction on the enjoyment of the ownership of the vehicle does not have any
relation to its operation as a PUV.

On the other hand, prohibitions on the posting of commercial advertisements on windows

of buses, because it hinders police authorities from seeing whether the passengers inside
are safe, is a regulation on the franchise or permit to operate. It has a direct relation to the
operation of the vehicle as a PUV, i.e., the safety of the passengers.

In the same manner, the COMELEC does not have the constitutional power to regulate
public transport terminals owned by private persons. The ownership of transport terminals,
even if made available for use by the public commuters, likewise remains private.
Although owners of public transport terminals may be required by local governments to
obtain permits in order to operate, the permit only pertains to circumstances affecting the
operation of the transport terminal as such. The regulation of such permit to operate should
similarly be limited to circumstances affecting the operation of the transport terminal. A
regulation of public transport terminals based on extraneous circumstances, such as
prohibiting the posting of election campaign materials thereon, amounts to regulating the
ownership of the transport terminal and not merely the permit to operate the same.

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Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the
constitutionally delegated power of the COMELEC to supervise or regulate the franchise
or permit to operate of transportation utilities. The posting of election campaign material
on vehicles used for public transport or on transport terminals is not only a form of
political expression, but also an act of ownership - it has nothing to do with the franchise
or permit to operate the PUV or transport terminal.

The rulings in National Press Club

and Osmena v. COMELEC[26] find
no application to this case.

The COMELEC pointed out that the issue presented in the instant case is akin to the
Court's rulings in National Press Club and Osmeña. It explained that in both cases, the
Court sustained Section II(b) of R.A. No. 6646 or the Electoral Reforms Law of 1997,
which prohibits newspapers, radio broadcasting or TV stations, and other mass media from
selling or giving print space or airtime for campaign or other political purposes, except to
the COMELEC, during the election campaign. The COMELEC averred that if the
legislature can empower it to impose an advertising ban on mass media, it could likewise
empower it to impose a similar ban on PUVs and transport terminals.

The Court does not agree.

The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct relation to the
enjoyment and utilization of the franchise or permit to operate of newspapers, radio
broadcasting and TV stations, and other mass media, which the COMELEC has the power
to regulate pursuant to Section 4, Article IX-C of the Constitution. The print space or
airtime is an integral part of the franchise or permit to operate of mass media utilities.
Thus, the restriction under Section ll(b) of R.A. No. 6646 is within the confines of the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the
Constitution.

On the other hand, the prohibition on the posting of election campaign materials under
Section 7(g) items (5) and (6) of Resolution No. 9615, as already explained, does not have
any relation to the franchise or permit of PUVs and transport terminals to operate as such
and, hence, is beyond the power of the COMELEC under Section 4, Article IX-C of the
Constitution.

The restriction on free speech of

owners of PUVs and transport
terminals is not necessary to
further the stated governmental
interest.

Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the fourth
requisite of a valid content-neutral regulation, i.e., the incidental restriction on freedom of
expression is no greater than is essential to the furtherance of that interest. There is
absolutely no necessity to restrict the right of the owners of PUVs and transport terminals
to free speech to further the governmental interest. While ensuring equality of time, space,
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and opportunity to candidates is an important and substantial governmental interest and is

essential to the conduct of an orderly election, this lofty aim may be achieved sans any
intrusion on the fundamental right of expression.

First, while Resolution No. 9615 was promulgated by the COMELEC to implement the
provisions of R.A. No. 9006, the prohibition on posting of election campaign materials on
PUVs and transport terminals was not provided for therein.

Second, there are more than sufficient provisions in our present election laws that would
ensure equal time, space, and opportunity to candidates in elections. Section 6 of R.A. No.
9006 mandates that "all registered parties and bona fide candidates shall have equal access
to media time and space" and outlines the guidelines to be observed in the implementation
thereof, viz:

Section 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:

6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet
and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or
other publications, during the campaign period.

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.

6.3 All mass media entities shall furnish the COMELEC with a copy of all
contracts for advertising, promoting or opposing any political party or the
candidacy of any person for public office within five (5) days after its signing.
In every case, it shall be signed by the donor, the candidate concerned or by the
duly authorized representative of the political party.

6.4 No franchise or permit to operate a radio or television station shall be

granted or issued, suspended or cancelled during the election period. In all
instances, the COMELEC shall supervise the use and employment of press,
radio and television facilities insofar as the placement of political
advertisements is concerned to ensure that candidates are given equal
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opportunities under equal circumstances to make known their qualifications

and their stand on public issues within the limits set forth in the Omnibus
Election Code and Republic Act No. 7166 on election spending.

The COMELEC shall ensure that radio or television or cable television

broadcasting entities shall not allow the scheduling of any program or permit
any sponsor to manifestly favor or oppose any candidate or political party by
unduly or repeatedly referring to or including said candidate and/or political
party in such program respecting, however, in all instances the right of said
broadcast entities to air accounts of significant news or news worthy events
and views on matters of public interest.

6.5 All members of media, television, radio or print, shall scrupulously report
and interpret the news, taking care not to suppress essential facts nor to distort
the truth by omission or improper emphasis. They shall recognize the duty to
air the other side and the duty to correct substantive errors promptly.

6.6 Any mass media columnist, commentator, announcer, reporter, on-air

correspondent or personality who is a candidate for any elective public office
or is a campaign volunteer for or employed or retained in any capacity by any
candidate or political party shall be deemed resigned, if so required by their
employer, or shall take a leave of absence from his/her work as such during the
campaign period: Provided, That any media practitioner who is an official of a
political party or a member of the campaign staff of a candidate or political
party shall not use his/her time or space to favor any candidate or political
party.

6.7 No movie, cinematograph or documentary portraying the life or biography

of a candidate shall be publicly exhibited in a theater, television station or any
public forum during the campaign period.

6.8 No movie, cinematograph or documentary portrayed by an actor or media

personality who is himself a candidate shall likewise be publicly exhibited in a
theater or any public forum during the campaign period.

Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and
independent candidates to erect common poster areas and candidates to post lawful
election campaign materials in private places, with the consent of the owner thereof, and
in public places or property, which are allocated equitably and impartially.

Further, Section 13[27] of R.A. No. 7166[28] provides for the authorized expenses of
registered political parties and candidates for every voter; it affords candidates equal
opportunity in their election campaign by regulating the amount that should be spent for
each voter. Likewise, Section 14[29] of R.A. No. 7166 requires all candidates and
treasurers of registered political parties to submit a statement of all contributions and
expenditures in connection with the election. Section 14 is a post-audit measure that aims
to ensure that the candidates did not overspend in their election campaign, thereby
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enforcing the grant of equal opportunity to candidates under Section 13.

A strict implementation of the foregoing provisions of law would suffice to achieve the
governmental interest of ensuring equal time, space, and opportunity for candidates in
elections. There is thus no necessity of still curtailing the right to free speech of the owners
of PUVs and transport terminals by prohibiting them from posting election campaign
materials on their properties.

Section 7(g) items (5) and (6) of Resolution

No. 9615 are not justified under the
captive-audience doctrine.

The COMELEC further points out that PUVs and transport terminals hold a "captive
audience" - commuters who have no choice but be subjected to the blare of political
propaganda. The COMELEC further claims that while owners of privately owned PUVs
and transport terminals have a right to express their views to those who wish to listen, they
have no right to force their message upon an audience incapable of declining to receive it.

The COMELEC's claim is untenable.

The captive-audience doctrine states that when a listener cannot, as a practical matter,
escape from intrusive speech, the speech can be restricted.[30] The "captive-audience"
doctrine recognizes that a listener has a right not to be exposed to an unwanted message in
circumstances in which the communication cannot be avoided.[31]

A regulation based on the captive-audience doctrine is in the guise of censorship, which

undertakes selectively to shield the public from some kinds of speech on the ground that
they are more offensive than others. Such selective restrictions have been upheld only
when the speaker intrudes on the privacy of the home or the degree of captivity makes it
either impossible or impractical for the unwilling viewer or auditor to avoid exposure.[32]

In Consolidated Edison Co. v. Public Service Commission,[33] the Supreme Court of the
United States of America (U.S. Supreme Court) struck down the order of New York Public
Service Commission, which prohibits public utility companies from including inserts in
monthly bills discussing controversial issues of public policy. The U.S. Supreme Court
held that "[t]he prohibition cannot be justified as being necessary to avoid forcing
appellant's views on a captive audience, since customers may escape exposure to
objectionable material simply by throwing the bill insert into a wastebasket."[34]

Similarly, in Erznoznik v. City of Jacksonville,[35] the U.S. Supreme Court nullified a city
ordinance, which made it a public nuisance and a punishable offense for a drive-in movie
theater to exhibit films containing nudity, when the screen is visible from a public street or
place. The U.S. Supreme Court opined that the degree of captivity is not so great as to
make it impracticable for an unwilling viewer to avoid exposure, thus:

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The Jacksonville ordinance discriminates among movies solely on the basis of

content. Its effect is to deter drive-in theaters from showing movies containing
any nudity, however innocent or even educational. This discrimination cannot
be justified as a means of preventing significant intrusions on privacy. The
ordinance seeks only to keep these films from being seen from public streets
and places where the offended viewer readily can avert his eyes. In short, the
screen of a drive-in theater is not "so obtrusive as to make it impossible
for an unwilling individual to avoid exposure to it." x x x Thus, we
conclude that the limited privacy interest of persons on the public streets
cannot justify this censorship of otherwise protected speech on the basis of its
content.[36] (Emphasis ours)

Thus, a government regulation based on the captive-audience doctrine may not be justified
if the supposed "captive audience" may avoid exposure to the otherwise intrusive speech.
The prohibition under Section 7(g) items (5) and (6) of Resolution No. 9615 is not
justified under the captive-audience doctrine; the commuters are not forced or compelled
to read the election campaign materials posted on PUVs and transport terminals. Nor are
they incapable of declining to receive the messages contained in the posted election
campaign materials since they may simply avert their eyes if they find the same
unbearably intrusive.

The COMELEC, in insisting that it has the right to restrict the posting of election
campaign materials on PUVs and transport terminals, cites Lehman v. City of Shaker
Heights,[37] a case decided by the U.S. Supreme Court. In Lehman, a policy of the city
government, which prohibits political advertisements on government-run buses, was
upheld by the U.S. Supreme Court. The U.S. Supreme Court held that the advertising
space on the buses was not a public forum, pointing out that advertisement space on
government-run buses, "although incidental to the provision of public transportation, is a
part of commercial venture."[38] In the same way that other commercial ventures need not
accept every proffer of advertising from the general public, the city's transit system has the
discretion on the type of advertising that may be displayed on its vehicles.

Concurring in the judgment, Justice Douglas opined that while Lehman, a candidate for
state office who sought to avail himself of advertising space on government-run buses,
"clearly has a right to express his views to those who wish to listen, he has no right to
force his message upon an audience incapable of declining to receive it."[39] Justice
Douglas concluded: "the right of the commuters to be free from forced intrusions on their
privacy precludes the city from transforming its vehicles of public transportation into
forums for the dissemination of ideas upon this captive audience."[40]

The COMELEC's reliance on Lehman is utterly misplaced.

In Lehman, the political advertisement was intended for PUVs owned by the city
government; the city government, as owner of the buses, had the right to decide which
type of advertisements would be placed on its buses. The U.S. Supreme Court gave

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primacy to the city government's exercise of its managerial decision, viz:

Revenue earned from long-term commercial advertising could be jeopardized

by a requirement that short-term candidacy or issue-oriented advertisements be
displayed on car cards. Users would be subjected to the blare of political
propaganda. There could be lurking doubts about favoritism, and sticky
administrative problems might arise in parceling out limited space to eager
politicians. In these circumstances, the managerial decision to limit car
card space to innocuous and less controversial commercial and service-
oriented advertising does not rise to the dignity of First Amendment
violation. Were we to hold to the contrary, display cases in public hospitals,
libraries, office buildings, military compounds, and other public facilities
immediately would become Hyde Parks open to every would be pamphleteer
and politician. This the Constitution does not require.[41] (Emphasis ours)

Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city
government, in choosing the types of advertisements that would be placed on its
properties. In stark contrast, Section 7(g) items (5) and (6) of Resolution No. 9615 curtail
the choice of the owners of PUVs and transport terminals on the advertisements that may
be posted on their properties.

Also, the city government in Lehman had the right, nay the duty, to refuse political
advertisements on their buses. Considering that what were involved were facilities owned
by the city government, impartiality, or the appearance thereof, was a necessity. In the
instant case, the ownership of PUVs and transport terminals remains private; there exists
no valid reason to suppress their political views by proscribing the posting of election
campaign materials on their properties.

Prohibiting owners of PUVs and

transport terminals from posting
election campaign materials violates
the equal protection clause.

Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free
speech clause, but also of the equal protection clause. One of the basic principles on which
this government was founded is that of the equality of right, which is embodied in Section
1, Article III of the 1987 Constitution.[42] "Equal protection requires that all persons or
things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words, should not be treated differently,
so as to give undue favor to some and unjustly discriminate against others."[43]

"The equal protection clause is aimed at all official state actions, not just those of the
legislature. Its inhibitions cover all the departments of the government including the
political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken."[44]

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Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws to all citizens of the state. Equality of operation of statutes does
not mean their indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things, which are different in fact, be treated
in law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different.[45]

In order that there can be valid classification so that a discriminatory governmental act
may pass the constitutional norm of equal protection, it is necessary that the four requisites
of valid classification be complied with, namely: (1) it must be based upon substantial
distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to
existing conditions only; and (4) it must apply equally to all members of the class.[46]

It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No.
9615 is not limited to existing conditions and applies equally to the members of the
purported class. However, the classification remains constitutionally impermissible since it
is not based on substantial distinction and is not germane to the purpose of the law.

A distinction exists between PUVs and transport terminals and private vehicles and other
properties in that the former, to be considered as such, needs to secure from the
government either a franchise or a permit to operate. Nevertheless, as pointed out earlier,
the prohibition imposed under Section 7(g) items (5) and (6) of Resolution No. 9615
regulates the ownership per se of the PUV and transport terminals; the prohibition does
not in any manner affect the franchise or permit to operate of the PUV and transport
terminals.

As regards ownership, there is no substantial distinction between owners of PUVs and

transport terminals and owners of private vehicles and other properties. As already
explained, the ownership of PUVs and transport terminals, though made available for use
by the public, remains private. If owners of private vehicles and other properties are
allowed to express their political ideas and opinion by posting election campaign materials
on their properties, there is no cogent reason to deny the same preferred right to owners of
PUVs and transport terminals. In terms of ownership, the distinction between owners of
PUVs and transport terminals and owners of private vehicles and properties is merely
superficial. Superficial differences do not make for a valid classification.[47]

The fact that PUVs and transport terminals are made available for use by the public is
likewise not substantial justification to set them apart from private vehicles and other
properties. Admittedly, any election campaign material that would be posted on PUVs and
transport terminals would be seen by many people. However, election campaign materials
posted on private vehicles and other places frequented by the public, e.g., commercial
establishments, would also be seen by many people. Thus, there is no reason to single out
owners of PUVs and transport terminals in the prohibition against posting of election
campaign materials.

Further, classifying owners of PUVs and transport terminals apart from owners of private
vehicles and other properties bears no relation to the stated purpose of Section 7(g) items
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(5) and (6) of Resolution No. 9615, i.e., to provide equal time, space and opportunity to
candidates in elections. To stress, PUVs and transport terminals are private properties.
Indeed, the nexus between the restriction on the freedom of expression of owners of PUVs
and transport terminals and the government's interest in ensuring equal time, space, and
opportunity for candidates in elections was not established by the COMELEC.

In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
violate the free speech clause; they are content-neutral regulations, which are not within
the constitutional power of the COMELEC issue and are not necessary to further the
objective of ensuring equal time, space and opportunity to the candidates. They are not
only repugnant to the free speech clause, but are also violative of the equal protection
clause, as there is
no substantial distinction between owners of PUVs and transport terminals and owners of
private vehicles and other properties.

On a final note, it bears stressing that the freedom to advertise one's political candidacy is
clearly a significant part of our freedom of expression. A restriction on this freedom
without rhyme or reason is a violation of the most valuable feature of the democratic way
of life.[48]

WHEREFORE, in light of the foregoing disquisitions, the instant petition is hereby

GRANTED. Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615 issued by the Commission on Elections are hereby declared NULL and VOID for
being repugnant to Sections 1 and 4, Article III of the 1987 Constitution.

SO ORDERED.

Sereno, C.J., Carpio, Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Perlas-
Bernabe, and Leonen, JJ., concur.

Velasco, Jr., and Jardeleza, JJ., no part.

Leonardo-De Castro, and Villarama, Jr., JJ., on leave.

N O T I C E OF J U D G M E N T

Sirs/Mesdames:

Please take notice that on ___April 14, 2015___ a Decision/Resolution, copy attached
herewith, was rendered by the Supreme Court in the above-entitled case, the original of
which was received by this Office on May 07, 2015 at 10:15 a.m.

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Very truly yours,

(SGD)
ENRIQUETA ESGUERRA-VIDAL
Clerk of Court

[1] Rollo, pp. 3-31.

[2] Id. at 31-59.

[3] Id. at 37-39.

[4] Id. at 95-99.

[5] Id. at 103-105.

[6] Id. at 104-105.

[7] Id. at 11-12.

[8]Social Justice Society (SJS) v. Dangerous Drugs Board, et al, 591 Phil. 393, 405
(2008).

[9] Reyes, etc. v. Bagatsing, etc., 210 Phil. 457, 465-466 (1983).

[10] Chavez v. Gonzalez, et al., 569 Phil. 155, 203 (2008).

[11] See Bantam Books v. Sullivan, 372 US 58 (1963).

[12]
J. Puno, Concurring Opinion, Social Weather Stations, Inc. v. COMELEC, G.R. No.
147571, May 5, 2001, 357 SCRA 496, 512.

[13] Mutuc v. COMELEC, 146 Phil. 798, 805-806 (1970).

[14] G.R. No. 103956, March 31, 1992,207 SCRA 712.

[15] Id. at 719.

[16] Chavez v. Gonzalez, et al., supra note 10, at 204.

[17] Social Weather Stations, Inc. v. COMELEC, supra note 12, at 504, citing United States
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v. O'Brien 391 U.S. 367, 377.

[18] G.R. No. 102653, March 5, 1992, 207 SCRA 1.

[19] G.R. No. 147571, May 5, 2001, 357 SCRA 496.

[20] Id. at 505.

[21] 313 Phil. 296(1995).

[22] Id. at 321-323.

[23] Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol.
II, 1992 ed., p. 45.

[24] Civil Code of the Philippines, Article 428.

[25] 1987 Constitution, Article XII, Section 11.

[26] 351 Phil. 692(1998).

[27]Section 13. Authorized Expenses of Candidates and Political Parties. - The agreement
amount that a candidate or registered political party may spend for election campaign shall
be as follows:

For candidates. - Ten pesos (P 10.00) for President and Vice-President; and for other
candidates Three Pesos (P3.00) for every voter currently registered in the constituency
where he filed his certificate of candidacy: Provided, That a candidate without any
political party and without support from any political party may be allowed to spend Five
Pesos (P5.00) for every such voter; and

For political parties. - Five pesos (P5.00) for every voter currently registered in the
constituency or constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding any contribution in cash or in kind to
any candidate or political party or coalition of parties for campaign purposes, duly
reported to the Commission shall not be subject to the payment of any gift tax.

[28]
AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL
ELECTIONS AND ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS
THEREFOR, AND FOR OTHER PURPOSES.

[29] Section 14. Statement of Contributions and Expenditures; Effect of Failure to File
Statement. -Every candidate and treasurer of the political party shall, within thirty (30)
days after the day of the election, file in duplicate with the offices of the Commission the
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full, true and itemized statement of all contributions and expenditures in connection with
the election.

No person elected to any public offices shall enter upon the duties of his office until he has
filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning
candidate fails to file the statement required herein within the period prescribed by this
Act.

Except candidates for elective barangay office, failure to file the statements or reports in
connection with electoral contributions and expenditures are required herein shall
constitute an administrative offense for which the offenders shall be liable to pay an
administrative fine ranging from One thousand pesos (PI,000.00) to Thirty thousand pesos
(P30,000.00), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure;
otherwise, it shall be enforceable by a writ of execution issued by the Commission against
the properties of the offender.

It shall be the duty of every city or municipal election registrar to advise in writing, by
personal delivery or registered mail, within five (5) days from the date of election all
candidates residing in his jurisdiction to comply with their obligation to file their
statements of contributions and expenditures.

For the commission of a second or subsequent offense under this section, the
administrative fine shall be from Two thousand pesos (P2,000.00) to Sixty thousand pesos
(P60,000.00), in the discretion of the Commission. In addition, the offender shall be
subject to perpetual disqualification to hold public office.

[30] Black's Law Dictionary, 8th Edition, p. 224.

[31] See Pro-Choice Network v. Project Rescue, 799 F. Supp. 1417 (W.D.N.Y. 1992).

[32] See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975).

[33] 447 U.S. 530(1980).

[34] Id. at 530-531.

[35] 422 U.S. 205 (1975).

[36] Id. at 212.

[37] 418 U.S. 298(1974).

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[38] Id. at 303.

[39] Id. at 307.

[40] Id.

[41] Id. at 304.

[42]
Philippine Judges Association v. Prado, G.R. No. 105371, November 11, 1993, 227
SCRA 703 711.

[43] City of Manila v. Hon. Laguio, Jr., 495 Phil. 289, 326 (2005).

[44] Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 459 (2010).

[45]See Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R.
No. 148208, December 15, 2004, 446 SCRA 299.

[46] Quinto, et al. v. COMELEC, 621 Phil. 236, 273 (2009).

[47] Cruz, Constitutional Law, 2003 ed., p. 128.

[48] J. Paras, Dissenting Opinion, National Press Club v. COMELEC, supra note 18, at 43.

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