Diocese of Bacolod v. Commission on Elections: A Case on Free Speech and Election Propaganda

2h33-2026-01-29_03_14_05-1-recit-graded-diocese-of-bacolod-v-comelec-01-20.pdf

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." - Article Two, Section One, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the fundamental and preferred right to expression of the electorate during political contests no matter how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant and of first impression. We are asked to decide whether the Commission on Elections has the competence to limit expressions made by the citizens - who are not candidates - during elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary injunction and temporary restraining order under Rule sixty-five of the Rules of Court seeking to nullify Commission on Elections' Notice to Remove Campaign Materials dated February twenty-two, twenty thirteen and letter issued on February twenty-seven, twenty thirteen.

The facts are not disputed.

On February twenty-one, twenty thirteen, petitioners posted two tarpaulins within a private compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet by ten feet in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin contains the message "IBASURA RH Law" referring to the Reproductive Health Law of twenty twelve or Republic Act Number ten thousand three hundred fifty-four. The second tarpaulin is the subject of the present case.

This tarpaulin contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark. The electoral candidates were classified according to their vote on the adoption of Republic Act Number ten thousand three hundred fifty-four, otherwise known as the RH Law. Those who voted for the passing of the law were classified by petitioners as comprising "Team Patay," while those who voted against it form "Team Buhay":

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any candidate. Petitioners also conceded that the tarpaulin contains names of candidates for the twenty thirteen elections, but not of politicians who helped in the passage of the RH Law but were not candidates for that election.

On February twenty-two, twenty thirteen, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City, issued a Notice to Remove Campaign Materials addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The election officer ordered the tarpaulin's removal within three days from receipt for being oversized. Commission on Elections Resolution Number nine thousand six hundred fifteen provides for the size requirement of two feet by three feet.

On February twenty-five, twenty thirteen, petitioners replied requesting, among others, that one petitioner Bishop be given a definite ruling by Commission on Elections Law Department regarding the tarpaulin; and two pending this opinion and the availment of legal remedies, the tarpaulin be allowed to remain.

On February twenty-seven, twenty thirteen, Commission on Elections Law Department issued a letter ordering the immediate removal of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The letter of Commission on Elections Law Department was silent on the remedies available to petitioners. The letter provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already given you notice on February twenty-two, twenty thirteen as regards the election propaganda material posted on the church vicinity promoting for or against the candidates and party-list groups with the following names and messages, particularly described as follows:

The three-day notice expired on February twenty-five, twenty thirteen.

Considering that the above-mentioned material is found to be in violation of Commission on Elections Resolution Number nine thousand six hundred fifteen promulgated on January fifteenth, twenty thirteen particularly on the size (even with the subsequent division of the said tarpaulin into two), as the lawful size for election propaganda material is only two feet by three feet, please order or cause the immediate removal of said election propaganda material, otherwise, we shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections in ensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed] ATTY. ESMERALDA AMORA-LADRA Director Four

Concerned about the imminent threat of prosecution for their exercise of free speech, petitioners initiated this case through this petition for certiorari and prohibition with application for preliminary injunction and temporary restraining order. They question respondents' notice dated February twenty-two, twenty thirteen and letter issued on February twenty-seven, twenty thirteen. They pray that: one the petition be given due course; two a temporary restraining order and or a writ of preliminary injunction be issued restraining respondents from further proceeding in enforcing their orders for the removal of the Team Patay tarpaulin; and three after notice and hearing, a decision be rendered declaring the questioned orders of respondents as unconstitutional and void, and permanently restraining respondents from enforcing them or any other similar order.

After due deliberation, this court, on March fifth, twenty thirteen, issued a temporary restraining order enjoining respondents from enforcing the assailed notice and letter, and set oral arguments on March nineteenth, twenty thirteen.

On March thirteenth, twenty thirteen, respondents filed their comment arguing that one a petition for certiorari and prohibition under Rule sixty-five of the Rules of Court filed before this court is not the proper remedy to question the notice and letter of respondents; and two the tarpaulin is an election propaganda subject to regulation by Commission on Elections pursuant to its mandate under Article Nine-C, Section four of the Constitution. Hence, respondents claim that the issuances ordering its removal for being oversized are valid and constitutional.

During the hearing held on March nineteenth, twenty thirteen, the parties were directed to file their respective memoranda within ten days or by April first, twenty thirteen, taking into consideration the intervening holidays.

The issues, which also served as guide for the oral arguments, are:

WHETHER THE TWENTY TWO FEBRUARY TWO THOUSAND THIRTEEN NOTICE ORDER BY ELECTION OFFICER MAJARUCON AND THE TWENTY SEVEN FEBRUARY TWO THOUSAND THIRTEEN ORDER BY THE COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS FINAL ORDERS RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE SIXTY-FIVE PETITION;

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT CONSIDERED JUDGMENTS FINAL ORDERS RESOLUTIONS OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE;

WHETHER IT IS RELEVANT TO DETERMINE WHETHER THE TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE;

Three.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT;

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO REGULATE THE SAME;

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED;

Four.

WHETHER THE TWENTY-SECOND FEBRUARY TWO THOUSAND THIRTEEN NOTICE/ORDER BY ELECTION OFFICER MAJARUCON AND THE TWENTY-Seventh FEBRUARY TWO THOUSAND THIRTEEN ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE; AND

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its adjudicatory powers, reviewable via Rule sixty-four of the Rules of Court.

Rule sixty-four is not the exclusive remedy for all acts of the COMELEC. Rule sixty-five is applicable especially to raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction. As a special civil action, there must also be a showing that there be no plain, speedy, and adequate remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court, whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En Banc rendered in the exercise of its adjudicatory or quasi-judicial power." Instead, respondents claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article Nine-C, Section two, paragraph three of the Constitution on COMELEC's power to decide all questions affecting elections. Respondents invoke the cases of Ambil, Jr. v. COMELEC, Repol v. COMELEC, Soriano, Jr. v. COMELEC, Blanco v. COMELEC, and Cayetano v. COMELEC, to illustrate how judicial intervention is limited to final decisions, orders, rulings and judgments of the COMELEC En Banc.

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the election protest. At issue was the validity of the promulgation of a COMELEC Division resolution. No motion for reconsideration was filed to raise this issue before the COMELEC En Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section seven, Article Nine-A of the Constitution] to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a division. The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections. (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions to this general rule. Repol was another election protest case, involving the mayoralty elections in Pagsanghan, Samar. This time, the case was brought to this court because the COMELEC First Division issued a status quo ante order against the Regional Trial Court executing its decision pending appeal. This court's ponencia discussed the general rule enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a COMELEC Division. However, consistent with ABS-CBN Broadcasting Corporation v. COMELEC, it clarified the exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the principle of social justice or the protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

Based on ABS-CBN, this court could review orders and decisions of COMELEC - in electoral contests - despite not being reviewed by the COMELEC En Banc, if:

One. It will prevent the miscarriage of justice;

Two. The issue involves a principle of social justice;

Three. The issue involves the protection of labor;

Four. The decision or resolution sought to be set aside is a nullity; or

Five. The need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

Ultimately, this court took jurisdiction in Repol and decided that the status quo ante order issued by the COMELEC Division was unconstitutional.

Respondents also cite Soriano, Jr. against COMELEC. This case was also an election protest case involving candidates for the city council of Muntinlupa City. Petitioners in Soriano, Jr. filed before this court a petition for certiorari against an interlocutory order of the COMELEC First Division. While the petition was pending in this court, the COMELEC First Division dismissed the main election protest case. Soriano applied the general rule that only final orders should be questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the general rule in ABS-CBN.

Blanco against COMELEC, another case cited by respondents, was a disqualification case of one of the mayoralty candidates of Meycauayan, Bulacan. The COMELEC Second Division ruled that petitioner could not qualify for the two thousand seven elections due to the findings in an administrative case that he engaged in vote buying in the nineteen ninety-five elections. No motion for reconsideration was filed before the COMELEC En Banc. This court, however, took cognizance of this case applying one of the exceptions in ABS-CBN: The assailed resolution was a nullity.

Finally, respondents cited Cayetano against COMELEC, a recent election protest case involving the mayoralty candidates of Taguig City. Petitioner assailed a resolution of the COMELEC denying her motion for reconsideration to dismiss the election protest petition for lack of form and substance. This court clarified the general rule and refused to take cognizance of the review of the COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these exceptions did not apply.

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as precedents to oust this court from taking jurisdiction over this case. All these cases cited involve election protests or disqualification cases filed by the losing candidate against the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC's exercise of its adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the implementation of its regulatory powers. When it issued the notice and letter, the COMELEC was allegedly enforcing election laws.

One B. Rule sixty-five, grave abuse of discretion, and limitations on political speech

The main subject of this case is an alleged constitutional violation: the infringement on speech and the "chilling effect" caused by respondent COMELEC's notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the notice dated February twenty-two, two thousand thirteen and letter dated February twenty-seven, two thousand thirteen ordering the removal of the tarpaulin. It is their position that these infringe on their fundamental right to freedom of expression and violate the principle of separation of church and state and, thus, are unconstitutional.

The jurisdiction of this court over the subject matter is determined from the allegations in the petition. Subject matter jurisdiction is defined as the authority "to hear and determine cases of the general class to which the proceedings in question belong and is conferred by the sovereign authority which organizes the court and defines its powers." Definitely, the subject matter in this case is different from the cases cited by respondents.

Nothing less than the electorate's political speech will be affected by the restrictions imposed by COMELEC. Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the contours of power whether through the election of representatives in a republican government or the revision of the basic text of the Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation of the cogency of the message. Neither do we assess whether we should protect speech based on the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the quality of deliberation in our democratic society.

COMELEC's notice and letter affect preferred speech. Respondents' acts are capable of repetition. Under the conditions in which it was issued and in view of the novelty of this case, it could result in a "chilling effect" that would affect other citizens who want their voices heard on issues during the elections. Other citizens who wish to express their views regarding the election and other related issues may choose not to, for fear of reprisal or sanction by the COMELEC.

Direct resort to this court is allowed to avoid such proscribed conditions. Rule sixty-five is also the procedural platform for raising grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court's expanded exercise of certiorari as provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions affecting elections. Article Nine-C, Section two, paragraph three of the Constitution, provides:

Section two. The Commission on Elections shall exercise the following powers and functions:

Three. Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

Respondents' reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had any jurisdiction at all with its acts threatening imminent criminal action effectively abridging meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC's notice and letter on free speech. This does not fall under Article Nine-C, Section two, paragraph three of the Constitution. The use of the word "affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive power to decide any and all questions that arise during elections. COMELEC's constitutional competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article Eight, Section five, paragraph one of the Constitution. This provision provides for this court's original jurisdiction over petitions for certiorari and prohibition. This should be read alongside the expanded jurisdiction of the court in Article Eight, Section one of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this court's power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act tainted with unconstitutionality on the part of any government branch or instrumentality. This includes actions by the COMELEC. Furthermore, it is this court's constitutional mandate to protect the people against government's infringement of their fundamental rights. This constitutional mandate outweighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.