Chavez v COMELEC  Section 3 and 13 Fair Elections Act- all election

propaganda are subject to the supervision and

 Chavez asked the court to enjoin and declare regulation by the COMELEC.
uncontitutional COMELEC Section 32 of its
Resolution Number 6520 dated January 6, 2004. It
is in violation of the non impairment clause, invalid
exercise of police power, nature of ex post facto PENERA V COMELEC SEPTEMBER 2009
law, contrary to Fair election act and invalid due to
overbreadth.  Rosalinda Penera and Edgar Andanar are mayoralty
 Police power, as an inherent attribute of candidate. Andanar filed a disqualification case
sovereignty, is the power to prescribe regulations against Penera for for unlawfully engaging in
to promote the health, morals, peace, education, election campaigning and partisan political activity
good order, or safety, and the general welfare of prior to the commencement of the campaign
the people. period. Penera denied the allegation. Penera was
 Sec 32 of COMELEC Resolution Number 6520 its elected and proclaimed mayor during the May 14,
primary objectives are to prohibit premature 2007 election. COMELEC Second Division issued its
campaigning and to level the playing field for Resolution in SPA No. 07-224, which disqualified
candidates of public office, to equalize the situation Penera from continuing as a mayoralty candidate in
between popular or rich candidates, on one hand, Sta. Monica, for engaging in premature
and lesser-known or poorer candidates, on the campaigning, in violation of Sections 80 and 68 of
other, by preventing the former from enjoying the Omnibus Election Code.
undue advantage in exposure and publicity on  Grave abuse of discretion is such capricious and
account of their resources and popularity. The whimsical exercise of judgment equivalent to lack
latter is a valid reason for the exercise of police of jurisdiction. Mere abuse of discretion is not
power. The obvious intention of this provision is to enough. It must be grave, as when it is exercised
equalize, as far as practicable, the situations of rich arbitrarily or despotically by reason of passion or
and poor candidates by preventing the former from personal hostility. The abuse must be so patent and
enjoying the undue advantage offered by huge so gross as to amount to an evasion of a positive
campaign war chests. duty or to a virtual refusal to perform the duty
 Under the Omnibus Election Code, election enjoined or to act at all in contemplation of law.
campaign or partisan political activity is defined as  Prohibited acts of premature campaigning was
an act designed to promote the election or defeat defined under Section 80 of BP 881 (Omnibus
of a particular candidate or candidates to a public Election Code) and if duly proven, the
office. Activities included under this definition are: consequences of violation is spelled out clearly in
xxxx 5.) Directly or indirectly soliciting votes, Sec 68 of the same Code. That is the
pledges or support for or against a candidate. disqualification.
 When the petitioner signed the contract on his  Penera after filing her COC on March 29, 2007
private capacity but when he filed his COC as participated in motorcade and waiving their hands
senator the billboards featuring his name and to the public and throw candies to the onlookers.
image assumed partisan political character because Admitted by Penera.
the same indirectly promoted his candidacy.  The conduct of a motorcade is a form of election
Therefore, the COMELEC was acting well within its campaign or partisan political activity, falling
scope of powers when it required petitioner to squarely within the ambit of Section 79(b)(2) of the
discontinue the display of the subject billboards. Omnibus Election Code, on [h]olding political
 Article IX (C)(4) of the Constitution-the COMELEC caucuses, conferences, meetings, rallies, parades,
is expressly authorized to supervise or regulate the or other similar assemblies, for the purpose of
enjoyment or utilization of all media soliciting votes and/or undertaking any campaign or
communication or information to ensure equal propaganda for or against a candidate
opportunity, time, and space. All these are aimed at  Now for the law ruling of the Supreme Court:
the holding of free, orderly, honest, peaceful, and Section 15 of Republic Act No. 8436, as amended by
credible elections. Republic Act No. 9369, provides a new definition of
 Section 32, although not penal in nature, defines an the term candidate, as a result of which, premature
offense and prescribes a penalty for said offense. campaigning may no longer be committed. Under
Indeed, nowhere is it indicated in the assailed Section 79(a) of the Omnibus Election Code, a
provision that it shall operate retroactively. candidate is any person aspiring for or seeking an

1
 elective public office, who has filed a certificate of described under Section 79(b) of the Omnibus
candidacy by himself or through an accredited Election Code as election campaign or partisan
political party, aggroupment, or coalition of parties. political activity. However, only after said person
 Republic Act No. 8436, enacted on 22 December officially becomes a candidate, at the beginning of
1997, authorized the COMELEC to use an the campaign period, can said acts be given effect
automated election system for the process of as premature campaigning under Section 80 of the
voting, counting of votes, and Omnibus Election Code. Only after said person
canvassing/consolidating the results of the national officially becomes a candidate, at the start of the
and local elections. The statute also mandated the campaign period, can his/her disqualification be
COMELEC to acquire automated counting sought for acts constituting premature
machines, computer equipment, devices and campaigning. Obviously, it is only at the start of
materials; and to adopt new electoral forms and the campaign period, when the person officially
printing materials. becomes a candidate, that the undue and
 On 10 February 2007, Republic Act No. 9369 took iniquitous advantages of his/her prior acts,
effect. Section 13 of Republic Act No. 9369 constituting premature campaigning, shall accrue
amended Section 11 of Republic Act No. 8436 and to his/her benefit.
renumbered the same as the new Section 15 of  Penera herself never raised the argument that she
Republic Act No. 8436. Any person who files his can no longer be disqualified for premature
certificate of candidacy within this period shall only campaigning under Section 80, in relation to
be considered as a candidate at the start of the Section 68, of the Omnibus Election Code, since
campaign period for which he filed his certificate of the said provisions have already been, in the
candidacy: Provided, That, unlawful acts or words of the Dissenting Opinion, rendered
omissions applicable to a candidate shall effect only inapplicable, repealed, and done away with by
upon the start of the aforesaid campaign period. Section 15 of Republic Act No. 8436, as amended.
 RA 9369 did not repeal Section 80 of BP 881 This legal argument was wholly raised by the
introduces amendments to BP 881. Dissenting Opinion. Penera is disqualified.
 there is no absolute and irreconcilable
incompatibility between Section 15 of Republic Act PENERA v COMELEC
No. 8436, as amended, and Section 80 of the NOVEMBER 2009
Omnibus Election Code, which defines the
prohibited act of premature campaigning. It is  SC granted the MR of Penera on September 2009
possible to harmonize and reconcile these two decision.
provisions and, thus, give effect to both. First,  Previous decision, a person who files the COC
Section 80 of the Omnibus Election Code, on already a candidate even before the start of the
premature campaigning, explicitly provides that [i]t campaign period. This is contrary to the intent and
shall be unlawful for any person, whether or not a letter of the law. Lanot v COMELEC a person who
voter or candidate, or for any party, or association files a COC is not a candidate until the start of the
of persons, to engage in an election campaign or campaign period.
partisan political activity, except during the  Section 11 of Republic Act No. 8436 ("RA 8436")
campaign period. Very simply, premature moved the deadline for the filing of certificates of
campaigning may be committed even by a person candidacy to 120 days before election day. Thus, the
who is not a candidate. Second, Section 79(b) of original deadline was moved from 23 March 2004 to
the Omnibus Election Code defines election 2 January 2004, or 81 days earlier. The crucial
campaign or partisan political activity. question is: did this change in the deadline for filing
 True, that pursuant to Section 15 of Republic Act the certificate of candidacy make one who filed his
No. 8436, as amended, even after the filing of the certificate of candidacy before 2 January 2004
COC but before the start of the campaign period, a immediately liable for violation of Section 80 if he
person is not yet officially considered a candidate. engaged in election campaign or partisan political
Nevertheless, a person, upon the filing of his/her activities prior to the start of the campaign period
COC, already explicitly declares his/her intention to on 24 March 2004?
run as a candidate in the coming elections.  Under Section 11 of RA 8436, the only purpose for
 a person, after filing his/her COC but prior to his/her the early filing of certificates of candidacy is to give
becoming a candidate (thus, prior to the start of ample time for the printing of official ballots.
the campaign period), can already commit the acts

2
 When Congress amended RA 8436, Congress  Resolution 3636 24(h) is the implementation of the
decided to expressly incorporate the Lanot said law, survey for national candidates shall not be
doctrine into law. Thus, in enacting RA 9369, published 15 days before an election and 7 days for
Congress expressly wrote the Lanot doctrine into local candidates.
the second sentence, third paragraph of the  SC 5.4 of R.A. No. 9006 constitutes an
amended Section 15 of RA 8436: Any person who unconstitutional abridgment of freedom of speech,
files his certificate of candidacy within this period expression, and the press. It lays a prior restraint
shall only be considered as a candidate at the start on freedom of speech, expression and the press.
of the campaign period for which he filed his  Test to determine constitutional validity of 5.4 RA
certificate of candidacy: Provided, That, unlawful 9006.
acts or omissions applicable to a candidate shall  US v O’Brien (O’Brien test)- A] government
take effect only upon the start of the aforesaid regulation is sufficiently justified [1] if it is
campaign period. within the constitutional power of the
 In RA 9369, Congress inserted the word "only". Government; [2] if it furthers an important or
Thus, Congress not only reiterated but also substantial governmental interest; [3] if the
strengthened its mandatory directive that election governmental interest is unrelated to the
offenses can be committed by a candidate "only" suppression of free expression; and [4] if the
upon the start of the campaign period. This clearly incidental restriction on alleged First
means that before the start of the campaign Amendment freedoms [of speech, expression
period, such election offenses cannot be so and press] is no greater than is essential to the
committed. When the applicable provisions of RA furtherance of that interest.
8436, as amended by RA 9369, are read together,  Under this test, even if a law furthers an
these provisions of law do not consider Penera a important or substantial governmental
candidate for purposes other than the printing of interest, it should be invalidated if such
ballots, until the start of the campaign period. governmental interest is not unrelated to the
There is absolutely no room for any other suppression of free expression. Moreover,
interpretation. even if the purpose is unrelated to the
 The Decision rationalizes that a candidate who suppression of free speech, the law should
commits premature campaigning can be nevertheless be invalidated if the restriction on
disqualified or prosecuted only after the start of freedom of expression is greater than is
the campaign period. This is not what the law says. necessary to achieve the governmental
What the law says is "any unlawful act or omission purpose in question.
applicable to a candidate shall take effect only  First 5.4 fails to meet criterion 3. In effect
upon the start of the campaign period." The plain 5.4 shows a bias for a particular subject matter,
meaning of this provision is that the effective date if not viewpoint, by preferring personal opinion
when partisan political acts become unlawful as to to statistical results. The constitutional
a candidate is when the campaign period starts. guarantee of freedom of expression means
Before the start of the campaign period, the same that the government has no power to restrict
partisan political acts are lawful. expression because of its message, its ideas, its
subject matter, or its content.
 Inhibition of speech should be upheld only
if: lewd and obscene, the profane, the libelous,
SWS v COMELEC and the insulting or fighting words those which
by their very utterance inflict injury or tend to
incite an immediate breach of the peace.
 SWS sought to enjoin COMELEC from enforcing (Chaplinsky v. New Hampshire)
Section 5.4 of RA No 9006 (Fair Election Act) in  Second 5.4 fails to meet criterion 4 of
violation of their freedom of expression under O’Brien test namely that the restriction be not
Article III of the Constitution. Petitioners argue that greater than is necessary to further the
the restriction on the publication of election survey governmental interest. As already stated, 5.4
results constitutes a prior restraint on the exercise aims at the prevention of last-minute pressure
of freedom of speech without any clear and on voters, the creation of bandwagon effect,
present danger to justify such restraint. junking of weak or losing candidates, and
resort to the form of election cheating called

3
 dagdag-bawas. Praiseworthy as these aims of disqualify a candidate may be filed pursuant to
the regulation might be, they cannot be Section 68 of the OEC. All the offenses mentioned
attained at the sacrifice of the fundamental in Section 68 refer to election offenses under the
right of expression, when such aim can be OEC, not to violations of other penal laws. In other
more narrowly pursued by punishing unlawful words, offenses that are punished in laws other
acts, rather than speech because of than in the OEC cannot be a ground for a Section
apprehension that such speech creates the 68 petition. [T]he jurisdiction of the COMELEC to
danger of such evils. disqualify candidates is limited to those
 Under Administrative Code of 1987, enumerated in Section 68 of the [OEC]. All other
COMELEC has the power to confiscate bogus election offenses are beyond the ambit of
surveys results calculated to mislead voters. COMELEC jurisdiction. They are criminal and not
 To summarize then, we hold that 5.4 is invalid administrative in nature.
because (1) it imposes a prior restraint on the  The conduct of preliminary investigation is not
freedom of expression, (2) it is a direct and total required in the resolution of the electoral aspect
suppression of a category of expression even of a disqualification case.
though such suppression is only for a limited  Section 5, Rule 25 of COMELEC Resolution No. 9523.
period, and (3) the governmental interest sought Section 5. Effect of Petition if Unresolved Before
to be promoted can be achieved by means other Completion of Canvass. – If a Petition for
than the suppression of freedom of expression. Disqualification is unresolved by final judgment on
the day of elections, the petitioner may file a
EJERCITO v COMELEC motion with the Division or Commission En Banc
where the case is pending, to suspend the
proclamation of the candidate concerned, provided
that the evidence for the grounds to disqualify is
 San Luis filed disqualification case against Ejercito. strong. For this purpose, at least three (3) days
 Ejercito during the campaign period distributed to prior to any election, the Clerk of the Commission
the electorate the “Orange Card”. San Luis alleged shall prepare a list of pending cases and furnish all
that Orange card with an intent to influence, induce Commissioners copies of said the list. In the event
or corrupt the voters in voting for his favor, could that a candidate with an existing and pending
be used in any public hospital within the Province Petition to disqualify is proclaimed winner, the
of Laguna for their medical needs. “Orange Card” is Commission shall continue to resolve the said
considered a material consideration in convincing Petition.
the voters to cast their votes for [Ejercito’s] favor in  The “exclusive power [of the COMELEC] to conduct
clear violation of the provision of the Omnibus a preliminary investigation of all cases involving
Election Code Section 68 (a) given money or other criminal infractions of the election laws” stated in
material consideration to influence, induce or Par. 1 of COMELEC Resolution No. 2050 pertains to
corrupt the voters or public officials performing the criminal aspect of a disqualification case. It has
electoral functions. been repeatedly underscored that an election
 San Luis alleged that Ejercito violated par. (a), offense has its criminal and electoral aspects. Lanot
Section 5 of COMELEC Resolution No. 9615, vs. Comelec, each of the acts listed as ground for
otherwise known as the Rules and Regulations disqualification under Section 68 of the OEC has
Implementing FAIR ELECTION ACT, authorize two aspects – electoral and criminal which may
expenses of Candidates and Parties. A candidate proceed independently from each other.
for the position of Provincial Governor of Laguna is Proceedings are summary in character and require
only authorized to incur an election expense only clear preponderance of evidence. An erring
amounting to FOUR MILLION FIVE HUNDRED candidate may be disqualified even without prior
SEVENTY-SIX THOUSAND FIVE HUNDRED SIXTY-SIX determination of probable cause in a preliminary
(P4,576,566.00) PESOS. investigation. The electoral aspect may proceed
 Ejercito paid 16,611,549 on her campaign ad. independently of the criminal aspect, and vice-
 The petition filed by San Luis against Ejercito is for versa.
the latter’s disqualification and prosecution for The criminal aspect of a disqualification case
election offense. The purpose of a disqualification determines whether there is probable cause to
proceeding is to prevent the candidate from charge a candidate for an election offense. The
running or, if elected, from serving, or to prosecute prosecutor is the COMELEC, through its Law
him for violation of the election laws. A petition to

4
 Department, which determines whether probable shall be the duty of the EID (Education and
cause exists. If there is probable cause, the Information Department) to formally inform media
COMELEC, through its Law Department, files the entities that the latter’s failure to comply with the
criminal information before the proper court. mandatory provisions of this Section shall be
Proceedings before the proper court demand a full- considered an election offense punishable pursuant
blown hearing and require proof beyond to Section 13 of Republic Act No. 9006.
reasonable doubt to convict. A criminal conviction  COMELEC RESO NO. 9615 Section 9 Requirements
shall result in the disqualification of the offender, limitations on the Use of Election Propaganda
which may even include disqualification from through Mass Media.
holding a future public office.” The petition for  R.A. No. 9006 explicitly directs that broadcast
disqualification against Ejercito for campaign over- advertisements donated to the candidate shall not
spending before the Commission is heard and be broadcasted without the written acceptance of
resolved pursuant to the electoral aspect of Section the candidate, which shall be attached to the
68 of the OEC. It is an administrative proceeding advertising contract and shall be submitted to the
separate and distinct from the criminal proceeding COMELEC, and that, in every case, advertising
through which Ejercito may be made to undergo in contracts shall be signed by the donor, the
order to determine whether he can be held candidate concerned or by the duly-authorized
criminally liable for the same act of over-spending. representative of the political party.
It is through this administrative proceeding that  COMELEC Resolution No. 9615 also unambiguously
this Commission, initially through its divisions, states that it shall be unlawful to broadcast any
makes a factual determination on the veracity of election propaganda donated or given free of
the parties’ respective allegations in a charge by any person or broadcast entity to a
disqualification case. There is no need for a candidate without the written acceptance of the
preliminary investigation finding on the criminal said candidate and unless they bear and be
aspect of the offenses in Section 68 before the identified by the words “airtime for this broadcast
Commission can act on the administrative or was provided free of charge by” followed by the
electoral aspect of the offense. All that is needed is true and correct name and address of the donor.
a complaint or a petition.While its criminal aspect to  Section 13 of R.A. No. 7166 sets the current
determine the guilt or innocence of the accused allowable limit on expenses of candidates and
cannot be the subject of summary hearing, its political parties for election campaign. Sections 100,
electoral aspect to ascertain whether the offender 101, and 103 of the OEC are not repealed by R.A. No.
should be disqualified from office can be determined 7166. These provisions, which are merely amended
in an administrative proceeding that is summary in insofar as the allowable amount is concerned.
character.  In tracing the legislative history of Sections 100, 101,
 The essence of due process is simply an and 103 of the OEC, it can be said, therefore, that
opportunity to be heard, or, as applied to the intent of our lawmakers has been consistent
administrative proceedings, an opportunity to through the years: to regulate not just the election
explain one's side or an opportunity to seek for a expenses of the candidate but also of his or her
reconsideration of the action or ruling complained contributor/supporter/donor as well as by including
of. Any seeming defect in its observance is cured by in the aggregate limit of the former’s election
the filing of a motion for reconsideration and denial expenses those incurred by the latter. The phrase
of due process cannot be successfully invoked by a “those incurred or caused to be incurred by the
party who had the opportunity to be heard candidate” is sufficiently adequate to cover those
thereon. expenses which are contributed or donated in the
 Pursuant to Section 2, Rule 129, the COMELEC has candidate’s behalf. By virtue of the legal
the discretion to properly take judicial notice of the requirement that a contribution or donation should
Advertising Contract. Judicial notice is when the bear the written conformity of the candidate, a
court accepts knowledge that is so common and contributor/supporter/donor certainly qualifies as
well accepted without needing evidence to be “any person authorized by such candidate or
presented in order to establish the truth of the treasurer.” Ubi lex non distinguit, nec nos
matter. distinguere debemus. (Where the law does not
 Section 4(4.2) and 6 (6.2) of RA 9006 and Rule 5 distinguish, neither should We.) There should be no
COMELEC Resolution No. 9476 Section 2 distinction in the application of a law where none is
Submission of Copies of Advertising Contracts. It indicated.

5
 this case, organ of government] before a court may
DIOCESE OF BACOLOD v COMELEC come into the picture
principle of exhaustion of administrative remedies
 Team Patay v Team Buhay exceptions:
 COMELEC issued a notice to Bishop Navarra to remove  (a) when there is a violation of due process; (b)
the tarpaulin failure of it would result to the filing of the when the issue involved is purely a legal question;
election offense. Thus petition for certiorari was filed. (c) when the administrative action is patently illegal
TRO was issued. amounting to lack or excess of jurisdiction; (d)
 Main subject of the case is the violation of when there is estoppel on the part ofthe
constitutional rights, the infringement of speech and administrative agency concerned; (e) when there is
its effect . irreparable injury; (f) when the respondent is a
 Doctrine of Hierarchy of Court exceptions: department secretary whose acts as analter ego of
 First, a direct resort to this court is allowed when the President bear the implied and assumed
there are genuine issues of constitutionality that approval of the latter; (g) when to require
must be addressed at the most immediate time. exhaustion of administrative remedies would be
 A second exception is when the issues involved are unreasonable; (h) when it would amount to a
of transcendental importance. nullification of a claim; (i) when the subject matter
 Third, cases of first impression warrant a direct is a private land in land case proceedings; (j) when
resort to this court. In cases of first impression, no the rule does not provide a plain, speedy and
jurisprudence yet exists that will guide the lower adequate remedy; or (k) when there are
courts on this matter. circumstances indicating the urgency of judicial
 Fourth, the constitutional issues raise dare better intervention.
decided by this court. Petitioners are not candidates neither belonging to any
 Fifth, the time element presented in this case political party nor franchise holders. COMELEC does not
cannot be ignored. have the authority to regulate the enjoyment of the
 Sixth, the filed petition reviews the act of a preferred right to freedom of expression exercised by a
constitutional organ. COMELEC is a constitutional non-candidate. Section 9 of the Fair Election Act on the
body. posting of campaign materials only mentions "parties"
 Seventh, petitioners rightly claim that they had no and "candidates" and similar to Section 17 of COMELEC
other plain, speedy, and adequate remedy in the RESO.NO. 9615 which shall refer to the posting of
ordinary course of law that could free them from campaign materials by the parties and candidates.
the injurious effects of respondents’ acts in COMELEC posits that tarpaulin is a campaign material.
violation of their right to freedom of expression. The above provisions regulating the posting of campaign
 Eighth, the petition includes questions that are materials only apply to candidates and political parties,
"dictated by public welfare and the advancement and petitioners are neither of the two.
of public policy, or demanded by the broader Section 79 of Batas Pambansa Blg. 881 defines election
interest of justice, or the orders complained of campaign. The focus of the definition is that the act must
were found to be patent nullities, or the appeal was be "designed to promote the election or defeat of a
considered as clearly an inappropriate remedy. particular candidate or candidates to a public office. In
 Political question- is that it is a matter which is to be this case, the tarpaulin contains speech on a matter of
exercised by the people in their primary political public concern, that is, a statement of either appreciation
capacity, or that it has been specifically delegated to or criticism on votes made in the passing of the RH law.
some other department or particular officer of the Thus, petitioners invoke their right to freedom of
government, with discretionary power to act. expression.
The concept of a political question, however, never Ebralinag v Divison Superintendent of Cebu- the freedom
precludes judicial review when the act of a constitutional of speech includes the right to be silent.
organ infringes upon a fundamental individual or Political speech refers to speech "both intended and
collective right. Even assuming arguendo that the received as a contribution to public deliberation about
COMELEC did have the discretion to choose the manner some issue "foster[ing] informed and civic minded
of regulation of the tarpaulin in question, it cannot do so deliberation." On the other hand, commercial speech has
by abridging the fundamental right to expression. been defined as speech that does "no more than propose
Ripeness is the "prerequisite that something had by then a commercial transaction." The expression resulting from
been accomplished or performed by either branch [or in the content of the tarpaulin is, however, definitely
political speech.

6
While the tarpaulin may influence the success or failure of content. For this purpose, it will not matter whether the
the named candidates and political parties, this does not speech is made with or on private property.
necessarily mean it is election propaganda. The tarpaulin Tarpaulin although seen by public remains private
was not paid for or posted "in return for consideration" property.
by any candidate, political party, or party-list group. Lemon test in that case, such that a regulation in freedom
Content-based restraint or censorship refers to of expression is constitutional when: (1) it has a secular
restrictions "based on the subject matter of the utterance legislative purpose; (2) it neither advances nor inhibits
or speech." In contrast, content-neutral regulation religion; and (3) it does not foster an excessive
includes controls merely on the incidents of the speech entanglement with religion.
such as time, place, or manner of the speech. Comelec notice of removal is UNCONSTITUTIONAL.
Content based regulation bears a heavy presumption of
invalidity.
In the case at bar involved content based restraint. If we
apply the test for content-neutral regulation, the 1 UTAK v COMELEC
questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of
speech. "When the speech restraints take the form of a ISSUE: whether Section 7(g) items (5) and (6), in relation to
content-neutral regulation, only a substantial Section 7(f), of Resolution No. 9615, which prohibits the
governmental interest is required for its validity," and it is posting of any election campaign or propaganda material,
subject only to the intermediate approach. inter alia, in PUVs and public transport terminals are valid
regulations.
 A content-neutral government regulation is
sufficiently justified:  Section 7(g) items (5) and (6), in relation to Section
7(f), of Resolution No. 9615 unduly infringe on the
 [1] if it is within the constitutional power of the
fundamental right of the people to freedom of speech.
Government; [2] if it furthers an important or
Pursuant to the assailed provisions of Resolution No.
substantial governmental interest; [3] if the
9615, posting an election campaign material during an
governmental interest is unrelated to the
election period in PUVs and transport terminals carries
suppression of free expression; and [4] if the
with it the penalty of revocation of the public utility
incident restriction on alleged [freedom of speech
franchise and shall make the owner thereof liable for an
& expression] is no greater than is essential to the
election offense.
furtherance of that interest.
 A content-neutral regulation, i.e., which is merely
Regulation of speech in the context of electoral concerned with the incidents of the speech, or one that
campaigns made by persons who are not candidates or merely controls the time, place or manner, and under
who do not speak as members of a political party which well-defined standards,16 is constitutionally permissible,
are, taken as a whole, principally advocacies of a social even if it restricts the right to free speech, provided that
issue that the public must consider during elections is the following requisites concur: first, the government
unconstitutional. regulation is within the constitutional power of the
Regulation of election paraphernalia will still be Government; second, it furthers an important or
constitutionally valid if it reaches into speech of persons substantial governmental interest; third, the
who are not candidates or who do not speak as members governmental interest is unrelated to the suppression of
of a political party if they are not candidates, only if what free expression; and fourth, the incidental restriction on
is regulated is declarative speech that, taken as a whole, freedom of expression is no greater than is essential to
has for its principal object the endorsement of a the furtherance of that interest.
candidate only. The regulation (a) should be provided by  Section 7(g) items (5) and (6) of Resolution No. 9615
law, (b) reasonable, (c) narrowly tailored to meet the are content-neutral regulations since they merely control
objective of enhancing the opportunity of all candidates the place where election campaign materials may be
to be heard and considering the primacy of the guarantee posted. However, the prohibition is still repugnant to the
of free expression, and (d) demonstrably the least free speech clause as it fails to satisfy all of the requisites
restrictive means to achieve that object. The regulation for a valid content-neutral regulation.
must only be with respect to the time, place, and manner  The prohibition under Section 7(g) items (5) and (6),
of the rendition of the message. In no situation may the in relation to Section 7(f), of Resolution No. 9615 is not
speech be prohibited or censored on the basis of its within the COMELEC's constitutionally delegated power
of supervision or regulation. It is not disputed that the

7
COMELEC has the power to supervise or regulate the selectively to shield the public from some kinds of speech
enjoyment or utilization of all franchises or permits for the on the ground that they are more offensive than others.
operation of transportation utilities during an election  Thus, a government regulation based on the captive-
period. audience doctrine may not be justified if the supposed
 The COMELEC may only regulate the franchise or "captive audience" may avoid exposure to the otherwise
permit to operate and not the ownership per se of PUVs intrusive speech. The prohibition under Section 7(g) items
and transport terminals. In Adiong, the Court, while (5) and (6) of Resolution No. 9615 is not justified under
recognizing that the COMELEC has supervisory power vis- the captive-audience doctrine; the commuters are not
a-vis the conduct and manner of elections under Section forced or compelled to read the election campaign
4, Article IX-C of the Constitution, nevertheless held that materials posted on PUVs and transport terminals. Nor
such supervisory power does not extend to the very are they incapable of declining to receive the messages
freedom of an individual to express his preference of contained in the posted election campaign materials since
candidates in an election by placing election campaign they may simply avert their eyes if they find the same
stickers on his vehicle. unbearably intrusive.
 The COMELEC's constitutionally delegated powers of
supervision and regulation do not extend to the ownership VETERANS FEDERATION PARTY v COMELEC
per se of PUVs and transport terminals, but only to the  Constitution makes the number of district
franchise or permit to operate the same. representatives the determinant in arriving at the number
 The expression of ideas or opinion of an owner of a of seats allocated for party-list lawmakers, who shall
PUV, through the posting of election campaign materials comprise "twenty per centum of the total number of
on the vehicle, does not affect considerations pertinent to representatives including those under the party-list." Any
the operation of the PUV. Surely, posting a decal increase in the number of district representatives, as may
expressing support for a certain candidate in an election be provided by law, will necessarily result in a
will not in any manner affect the operation of the PUV as corresponding increase in the number of party-list seats.
such. Regulating the expression of ideas or opinion in a  Section 5 (2), Article VI of the Constitution is not
PUV, through the posting of an election campaign mandatory. It merely provides a ceiling for party-list seats
material thereon, is not a regulation of the franchise or in Congress.
permit to operate, but a regulation on the very ownership  In imposing a two percent threshold, Congress
of the vehicle. wanted to ensure that only those parties, organizations
 COMELEC does not have the constitutional power to and coalitions having a sufficient number of constituents
regulate public transport terminals owned by private deserving of representation are actually represented in
persons. The ownership of transport terminals, even if Congress. The two percent threshold is consistent not
made available for use by the public commuters, likewise only with the intent of the framers of the Constitution and
remains private. the law, but with the very essence of "representation."
 Section 7(g) items (5) and (6) of Resolution No. 9615 Under a republican or representative state, all
are not within the constitutionally delegated power of the government authority emanates from the people, but is
COMELEC to supervise or regulate the franchise or permit exercised by representatives chosen by them. But to have
to operate of transportation utilities. The posting of meaningful representation, the elected persons must
election campaign material on vehicles used for public have the mandate of a sufficient number of people.
transport or on transport terminals is not only a form of Otherwise, in a legislature that features the party-list
political expression, but also an act of ownership - it has system, the result might be the proliferation of small
nothing to do with the franchise or permit to operate the groups which are incapable of contributing significant
PUV or transport terminal. legislation, and which might even pose a threat to the
 Section 7(g) items (5) and (6) of Resolution No. 9615 stability of Congress.
are not justified under the captive-audience doctrine. The  Congress set the seat-limit to three (3) for each
captive-audience doctrine states that when a listener qualified party, organization or coalition. "Qualified"
cannot, as a practical matter, escape from intrusive means having hurdled the two percent vote threshold.
speech, the speech can be restricted. The "captive- Such three-seat limit ensures the entry of various interest-
audience" doctrine recognizes that a listener has a right representations into the legislature; thus, no single group,
not to be exposed to an unwanted message in no matter how large its membership, would dominate the
circumstances in which the communication cannot be party-list seats, if not the entire House.
avoided. A regulation based on the captive-audience  Method of Allocating Additional Seats The very first
doctrine is in the guise of censorship, which undertakes step - there is no dispute on this - is to rank all the
participating parties, organizations and coalitions

8
 (hereafter collectively referred to as "parties") according certain of its leaders and members as candidates for
to the votes they each obtained. The percentage of their public office. Furthermore, Section 11 of RA 7941 leaves no
respective votes as against the total number of votes cast doubt as to the participation of political parties in the
for the party-list system is then determined. All those that party-list system.
garnered at least two percent of the total votes cast have
an assured or guaranteed seat in the House of Section 2 RA 7941"Proportional representation" it refers
Representatives. Thereafter, "those garnering more than to the representation of the "marginalized and
two percent of the votes shall be entitled to additional underrepresented" as exemplified by the enumeration in
seats in proportion to their total number of votes." Section 5 of the law; namely, "labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly,
The Legal and Logical Formula for the Philippines- First, the handicapped, women, youth, veterans, overseas workers,
twenty percent allocation - the combined number of all and professionals."
party-list congressmen shall not exceed twenty percent of
the total membership of the House of Representatives, "Lack of well-defined constituenc[y] " refers to the
including those elected under the party list. absence of a traditionally identifiable electoral group, like
voters of a congressional district or territorial unit of
Second, the two percent threshold - only those parties government. Rather, it points again to those with
garnering a minimum of two percent of the total valid votes disparate interests identified with the "marginalized or
cast for the party-list system are qualified to have a seat in underrepresented."
the House of Representatives;
Guidelines for Screening Party-List Participants
Third, the three-seat limit - each qualified party, regardless
of the number of votes it actually obtained, is entitled to a  First, the political party, sector, organization or
maximum of three seats; that is, one qualifying and two coalition must represent the marginalized and
additional seats. underrepresented groups identified in Section 5 of
RA 7941. In other words, it must show -- through its
Fourth, proportional representation - the additional seats constitution, articles of incorporation, bylaws,
which a qualified party is entitled to shall be computed in history, platform of government and track record --
proportion to their total number of votes. that it represents and seeks to uplift marginalized
and underrepresented sectors. Verily, majority of
BAGONG BAYANI OFW v COMELEC its membership should belong to the marginalized
and underrepresented. And it must demonstrate
that in a conflict of interests, it has chosen or is
likely to choose the interest of such sectors.
Under the Constitution and RA 7941, private respondents
cannot be disqualified from the party-list elections, merely  Second, while even major political parties are
on the ground that they are political parties. Section 5, expressly allowed by RA 7941 and the Constitution
Article VI of the Constitution provides that members of to participate in the party-list system, they must
the House of Representatives may "be elected through a comply with the declared statutory policy of
party-list system of registered national, regional, and enabling "Filipino citizens belonging to
sectoral parties or organizations." Furthermore, under marginalized and underrepresented sectors x x x to
Sections 7 and 8, Article IX (C) of the Constitution, political be elected to the House of Representatives." In
parties may be registered under the party-list system. other words, while they are not disqualified merely
on the ground that they are political parties, they
"The purpose of this is to open the system.
must show, however, that they represent the
Section 2 of RA 7941 also provides for "a party-list system interests of the marginalized and
of registered national, regional and sectoral parties or underrepresented.
organizations or coalitions thereof, x x x." Section 3
 Third, the Court notes the express constitutional
expressly states that a "party" is "either a political party
provision that the religious sector may not be
or a sectoral party or a coalition of parties." More to the
represented in the party-list system. Constitution
point, the law defines "political party" as "an organized
provides that "religious denominations and sects
group of citizens advocating an ideology or platform,
shall not be registered. The prohibition is on any
principles and policies for the general conduct of
religious organization registering as a political
government and which, as the most immediate means of
party. I do not see any prohibition here against a
securing their adoption, regularly nominates and supports
priest running as a candidate. That is not prohibited

9
 here; it is the registration of a religious sect as a to marginalized and underrepresented sectors,
political party. organizations and parties." Surely, the interests of
the youth cannot be fully represented by a retiree;
 Fourth, a party or an organization must not be neither can those of the urban poor or the working
disqualified under Section 6 of RA 7941, which class, by an industrialist.
enumerates the grounds for disqualification as
follows:  Eighth, as previously discussed, while lacking a well-
defined political constituency, the nominee must
o "(1) It is a religious sect or denomination, likewise be able to contribute to the formulation
organization or association organized for and enactment of appropriate legislation that will
religious purposes; benefit the nation as a whole.
o (2) It advocates violence or unlawful
means to seek its goal;
BANAT v COMELEC
o (3) It is a foreign party or organization;

o (4) It is receiving support from any foreign

government, foreign political party,  Four parameters stated in Veterans case: First, the
foundation, organization, whether directly twenty percent allocation the combined number of
or through any of its officers or members all party-list congressmen shall not exceed twenty
or indirectly through third parties for percent of the total membership of the House of
partisan election purposes; Representatives, including those elected under the
party list;Second, the two percent threshold only
o (5) It violates or fails to comply with laws, those parties garnering a minimum of two percent
rules or regulations relating to elections; of the total valid votes cast for the party-list system
are qualified to have a seat in the House of
o (6) It declares untruthful statements in its Representatives; Third, the three-seat limit each
petition; qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three
o (7) It has ceased to exist for at least one (1)
seats; that is, one qualifying and two additional
year; or
seats; Fourth, proportional representation the
o (8) It fails to participate in the last two (2) additional seats which a qualified party is entitled
preceding elections or fails to obtain at to shall be computed in proportion to their total
least two per centum (2%) of the votes cast number of votes
under the party-list system in the two (2)
 Section 11(a) of R.A. No. 7941 prescribes the
preceding elections for the constituency in
ranking of the participating parties from the
which it has registered.
highest to the lowest based on the number of
 Fifth, the party or organization must not be an votes they garnered during the elections.
adjunct of, or a project organized or an entity
 The first clause of Section 11(b) of R.A. No. 7941
funded or assisted by, the government. By the very
states that parties, organizations, and coalitions
nature of the party-list system, the party or
receiving at least two percent (2%) of the total
organization must be a group of citizens, organized
votes cast for the party-list system shall be
by citizens and operated by citizens. It must be
entitled to one seat each. This clause guarantees a
independent of the government.
seat to the two-percenters. The second clause of
 Sixth, the party must not only comply with the Section 11(b) of R.A. No. 7941 provides that those
requirements of the law; its nominees must garnering more than two percent (2%) of the votes
likewise do so. Section 9 of RA 7941. shall be entitled to additional seats in proportion
to their total number of votes.
 Seventh, not only the candidate party or
organization must represent marginalized and  In computing the allocation of additional seats,
underrepresented sectors; so also must its the continued operation of the two percent
nominees. To repeat, under Section 2 of RA 7941, threshold for the distribution of the additional
the nominees must be Filipino citizens "who belong seats as found in the second clause of Section

10
 11(b) of R.A. No. 7941 is unconstitutional. This intended the major political parties to participate in party-
Court finds that the two percent threshold makes list elections through their sectoral wings.
it mathematically impossible to achieve the Neither the Constitution nor R.A. No. 7941 mandates the
maximum number of available party list seats filling-up of the entire 20% allocation of party-list
when the number of available party list seats representatives found in the Constitution. The
exceeds 50. The continued operation of the two Constitution, in paragraph 1, Section 5 of Article VI, left
percent threshold in the distribution of the the determination of the number of the members of the
additional seats frustrates the attainment of the House of Representatives to Congress: The House of
permissive ceiling that 20% of the members of the Representatives shall be composed of not more than two
House of Representatives shall consist of party-list hundred and fifty members, unless otherwise fixed by
representatives. law, x x x. The 20% allocation of party-list representatives
is merely a ceiling; party-list representatives cannot be
 In determining the allocation of seats for party-list more than 20% of the members of the House of
representatives under Section 11 of R.A. No. 7941, Representatives.
the following procedure shall be observed: However, by a vote of 8-7, the Court decided to continue
1. The parties, organizations, and coalitions the ruling in Veterans disallowing major political parties
shall be ranked from the highest to the lowest from participating in the party-list elections, directly or
based on the number of votes they garnered during indirectly.
the elections.
2. The parties, organizations, and coalitions
receiving at least two percent (2%) of the total
votes cast for the party-list system shall be entitled ATONG PAGLAUM V COMELEC
to one guaranteed seat each.
3. Those garnering sufficient number of  Indisputably, the framers of the 1987 Constitution
votes, according to the ranking in paragraph 1, shall intended the party-list system to include not only sectoral
be entitled to additional seats in proportion to their parties but also non-sectoral parties. The framers intended
total number of votes until all the additional seats the sectoral parties to constitute a part, but not the
are allocated. entirety, of the party-list system. As explained by
4. Each party, organization, or coalition Commissioner Wilfredo Villacorta, political parties can
shall be entitled to not more than three (3) seats. participate in the party-list system "For as long as they field
 In computing the additional seats, the guaranteed seats candidates who come from the different marginalized
shall no longer be included because they have already sectors that we shall designate in this Constitution."
been allocated, at one seat each, to every two-percenter.  The indisputable intent of the framers of the 1987
Thus, the remaining available seats for allocation as Constitution to include in the party-list system both sectoral
additional seats are the maximum seats reserved under and non-sectoral parties is clearly written in Section 5(1),
the Party List System less the guaranteed seats. Fractional Article VI of the Constitution.
seats are disregarded in the absence of a provision in R.A.  the party-list system is composed of three different
No. 7941 allowing for a rounding off of fractional seats. groups: (1) national parties or organizations; (2) regional
There are two steps in the second round of seat parties or organizations; and (3) sectoral parties or
allocation. First, the percentage is multiplied by the organizations. National and regional parties or
remaining available seats, 38, which is the difference organizations are different from sectoral parties or
between the 55 maximum seats reserved under the Party- organizations. National and regional parties or
List System and the 17 guaranteed seats of the two- organizations need not be organized along sectoral lines
percenters. The whole integer of the product of the and need not represent any particular sector.
percentage and of the remaining available seats  the clear intent, express wording, and party-list
corresponds to a partys share in the remaining available structure ordained in Section 5(1) and (2), Article VI of the
seats. Second, we assign one party-list seat to each of the 1987 Constitution cannot be disputed: the party-list system
parties next in rank until all available seats are completely is not for sectoral parties only, but also for non-sectoral
distributed. We distributed all of the remaining 38 seats in parties.
the second round of seat allocation. Finally, we apply the
 Section 3(a) of R.A. No. 7941 defines a "party" as
three-seat cap to determine the number of seats each
"either a political party or a sectoral party or a coalition of
qualified party-list candidate is entitled.
parties." Clearly, a political party is different from a sectoral
Neither the Constitution nor R.A. No. 7941 prohibits major
party. Section 3(c) of R.A. No. 7941 further provides that a
political parties from participating in the party-list system.
"political party refers to an organized group of citizens
On the contrary, the framers of the Constitution clearly

11
advocating an ideology or platform, principles and policies as to encourage them to work assiduously in extending
for the general conduct of government." On the other their constituencies to the "marginalized and
hand, Section 3(d) of R.A. No. 7941 provides that a "sectoral underrepresented" and to those who "lack well-defined
party refers to an organized group of citizens belonging to political constituencies." The participation of major political
any of the sectors enumerated in Section 5 hereof whose parties in party-list elections must be geared towards the
principal advocacy pertains to the special interest and entry, as members of the House of Representatives, of the
concerns of their sector." R.A. No. 7941 provides different "marginalized and underrepresented" and those who "lack
definitions for a political and a sectoral party. Obviously, well-defined political constituencies," giving them a voice in
they are separate and distinct from each other. R.A. No. law-making. Thus,to participate in party-list elections, a
7941 does not require national and regional parties or major political party that fields candidates in the legislative
organizations to represent the "marginalized and district elections must organize a sectoral wing, like a
underrepresented" sectors. labor, peasant, fisherfolk, urban poor, professional,
women or youth wing, that can register under the party-
 A political party need not be organized as a sectoral list system. Such sectoral wing of a major political party
party and need not represent any particular sector. There is must have its own constitution, by-laws, platform or
no requirement in R.A. No. 7941 that a national or regional program of government, officers and members, a majority of
political party must represent a "marginalized and whom must belong to the sector represented. The sectoral
underrepresented" sector. It is sufficient that the political wing is in itself an independent sectoral party, and is linked
party consists of citizens who advocate the same ideology to a major political party through a coalition. This linkage is
or platform, or the same governance principles and policies, allowed by Section 3 of R.A. No. 7941, which provides that
regardless of their economic status as citizens. Section 5 of "component parties or organizations of a coalition may
R.A. No. 7941 states that "the sectors shall include labor, participate independently (in party-list elections) provided
peasant, fisherfolk, urban poor, indigenous cultural the coalition of which they form part does not participate in
communities, elderly, handicapped, women, youth, the party-list system."
veterans, overseas workers, and professionals."
 Ang Bagong Bayani laid down the guidelines for
 How then should we harmonize the broad policy qualifying those who desire to participate in the
declaration in Section 2 of R.A. No. 7941 with its party-list system:
specific implementing provisions, bearing in mind
the applicable provisions of the 1987 Constitution  First, the political party, sector, organization or
on the matter? coalition must represent the marginalized and
underrepresented groups identified in Section 5 of
 The phrase "marginalized and underrepresented" RA 7941. x x x
should refer only to the sectors in Section 5 that are, by
their nature, economically "marginalized and  Second, while even major political parties are
underrepresented." These sectors are: labor, peasant, expressly allowed by RA 7941 and the Constitution
fisherfolk, urban poor, indigenous cultural communities, to participate in the party-list system, they must
handicapped, veterans, overseas workers, and other similar comply with the declared statutory policy of
sectors. For these sectors, a majority of the members of enabling "Filipino citizens belonging to
the sectoral party must belong to the "marginalized and marginalized and underrepresented sectors x x x
underrepresented." The nominees of the sectoral party to be elected to the House of Representatives
either must belong to the sector, or must have a track
record of advocacy for the sector represented. Belonging  Third, x x x the religious sector may not be
to the "marginalized and underrepresented" sector does represented in the party-list system.
not mean one must "wallow in poverty, destitution or
infirmity." It is sufficient that one, or his or her sector, is  Fourth, a party or an organization must not be
below the middle class. More specifically, the economically disqualified under Section 6 of RA 7941,
"marginalized and underrepresented" are those who fall in
 Fifth, the party or organization must not be an
the low income group as classified by the National Statistical
adjunct of, or a project organized or an entity
Coordination Board.
funded or assisted by, the government.

 Sixth, the party must not only comply with the

 The 1987 Constitution and R.A. No. 7941 allow requirements of the law; its nominees must
major political parties to participate in party-list elections so likewise do so. Section 9 of RA 7941.

12
  Seventh, not only the candidate party or cases of district representatives, once the party or
organization must represent marginalized and organization of the party-list nominee has been
underrepresented sectors; so also must its nominees. proclaimed and the nominee has taken his oath and
 Eighth, x x x the nominee must likewise be able to assumed office as member of the House of
contribute to the formulation and enactment of appropriate Representatives, the COMELEC’s jurisdiction over
legislation that will benefit the nation as a whole. election contests relating to his qualifications ends and
 The COMELEC excluded from participating in the 13 the HRET’s own jurisdiction begins.
May 2013 party-list elections those that did not satisfy these
two criteria: (1) all national, regional, and sectoral groups or
organizations must represent the "marginalized and
underrepresented" sectors, and (2) all nominees must
belong to the "marginalized and underrepresented" sector
they represent.

PALPARAN v HRET

 Although it is the party-list organization that is voted

for in the elections, it is not the organization that sits as
and becomes a member of the House of
Representatives. Section 5, Article VI of the
Constitution, identifies who the "members" of that
House. Clearly, the members of the House of
Representatives are of two kinds: "members x x x who
shall be elected from legislative districts" and "those
who x x x shall be elected through a party-list system
of registered national, regional, and sectoral parties or
organizations." This means that, from the
Constitution’s point of view, it is the party-list
representatives who are "elected" into office, not their
parties or organizations. These representatives are
elected, however, through that peculiar party-list
system that the Constitution authorized and that
Congress by law established where the voters cast their
votes for the organizations or parties to which such
party-list representatives belong. Once elected, both
the district representatives and the party-list
representatives are treated in like manner. They have
the same deliberative rights, salaries, and emoluments.
They can participate in the making of laws that will
directly benefit their legislative districts or sectors. They
are also subject to the same term limitation of three
years for a maximum of three consecutive terms.

 Both the Constitution and the Party-List System Act set

the qualifications and grounds for disqualification of
party-list nominees. Section 9 of R.A. 7941.
 What is inevitable is that Section 17, Article VI of the
Constitution provides that the HRET shall be the sole
judge of all contests relating to, among other things,
the qualifications of the members of the House of
Representatives. Since, as pointed out above, party-list
nominees are "elected members" of the House of
Representatives no less than the district
representatives are, the HRET has jurisdiction to hear
and pass upon their qualifications. By analogy with the

13