VOL.

789, JULY 5, 2016 197

The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

EN BANC

[G.R. No. 205728. July 5, 2016]

THE DIOCESE OF BACOLOD, REPRESENTED BY THE

MOST REV. BISHOP VICENTE M. NAVARRA AND
THE BISHOP HIMSELF IN HIS PERSONAL
CAPACITY, petitioners, vs. COMMISSION ON
ELECTIONS AND THE ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON,
respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; RULE 64 IS NOT

THE EXCLUSIVE REMEDY TO ASSAIL THE DECISION
OF THE COMMISSION ON ELECTIONS (COMELEC)
AS RULE 65 APPLIES FOR GRAVE ABUSE OF
DISCRETION RESULTING TO OUSTER OF
JURISDICTION.— On respondents’ argument on the
prematurity of filing the case before this Court, we discussed
in our Decision that Rule 64 is not the exclusive remedy for
all Commission on Elections’ acts as Rule 65 applies for grave
abuse of discretion resulting to ouster of jurisdiction. The
five (5) cases again cited by respondents are not precedents
since these involve election protests or are disqualification
cases filed by losing candidates against winning candidates.
Petitioners are not candidates. They are asserting their right
to freedom of expression.
2. POLITICAL LAW; ELECTIONS; THE COURT
REITERATES THAT THE SUBJECT TARPAULINS ARE
NOT ELECTION PROPAGANDA FOR ITS MESSAGES
ARE DIFFERENT FROM THE USUAL DECLARATIVE
MESSAGES OF CANDIDATES.— This Court’s Decision
discussed that the tarpaulin consists of satire of political parties
that “primarily advocates a stand on a social issue; only
secondarily—even almost incidentally—will cause the election
or non-election of a candidate.” It is not election propaganda
as its messages are different from the usual declarative messages
of candidates. The tarpaulin is an expression with political
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consequences, and “[t]his court’s construction of the guarantee

of freedom of expression has always been wary of censorship
or subsequent punishment that entails evaluation of the
speaker’s viewpoint or the content of one’s speech.”

BRION, J., dissenting opinion:

1. POLITICAL LAW; CONSTITUTIONAL LAW; COMMISSION

ON ELECTIONS (COMELEC) ISSUANCE OF SEC. 6(C)
OF COMELEC RESOLUTION NO. 9615 AND ITS
IMPLEMENTATION THROUGH THE NOTICE TO
REMOVE CAMPAIGN MATERIALS IS WITHIN
COMELEC’S EXCLUSIVE JURISDICTION TO ENFORCE
AND IMPLEMENT ELECTION LAWS.— I disagree with
the denial of the respondents’ motion for reconsideration
because of its jurisprudential effect: the currently prevailing
ruling substantially diminishes the Comelec’s constitutional
and exclusive jurisdiction to enforce and administer all laws
and regulations relative to the conduct of an election under
Article IX-C, Section 2 (1) of the 1987 Constitution, including
the regulation of election propaganda. It also reduces the
Comelec’s capacity under Article IX-C, Section 2 (7) “to
recommend to the Congress effective measures to minimize
election spending, including limitation of places where
propaganda materials shall be posted.” x x x The size restrictions
for election posters in Section 3.3 of Republic Act No. 9006
(RA 9006, otherwise known as the Fair Elections Act) is a
lawful exercise of Congress’s power to regulate election
propaganda. The Comelec’s issuance of its implementing rule,
Section 6 (c) of Comelec Resolution No. 9615, and its
implementation in the present case through the Notice to
Remove Campaign Materials issued by Election Officer Mavil
V. Majarucon in a Letter dated February 22, 2013, and Comelec
Law Director Esmeralda Amora-Ladra in an Order dated
February 27, 2013, had not been outside of the Comelec’s
jurisdiction to enforce and implement election laws.
2. ID.; ID.; ID.; THE PETITIONS CHALLENGING THE
CONSTITUTIONALITY OF THE COMELEC’S LETTER
AND NOTICE ARE PREMATURE; THE COMELEC
SHOULD HAVE BEEN GIVEN THE FIRST
OPPORTUNITY TO RESOLVE BEFORE RESORTING
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TO JUDICIAL RECOURSE SINCE THE MATTERS

BEFORE THE COURT ARE NOTHING MORE THAN
THE NOTICE OF AN ELECTION OFFICER AND AN
ORDER OF A COMELEC LAW DIRECTOR.— The Court,
in exceptional cases, may review the Comelec’s administrative
acts through the Court’s expanded jurisdiction under the second
paragraph of Article VIII, Section 1 of the 1987 Constitution.
This constitutional authority is different from the certiorari
petition mentioned in Article IX-B, which pertains to the
Comelec’s quasi-judicial acts and is instituted through Rule
64 of the Rules of Court. Because the review of the Comelec’s
administrative act falls under the Court’s expanded jurisdiction
(under the second paragraph of Article VIII, Section 1), the
petition must necessarily reflect a prima facie showing of grave
abuse of discretion on the part of the Comelec. In other words,
the petition must have preliminarily shown that the Comelec’s
administrative act was performed in such a capricious, and
whimsical exercise of judgment so patent and gross as to amount
to an evasion of a positive duty or to a virtual refusal to perform
a duty enjoined by law. Note, at this point, that there can be
no prima facie showing of grave abuse of discretion unless
something has already been done or has taken place under
the law; and the petitioner sufficiently alleges the existence
of a threatened or immediate injury to itself as a result of the
gravely abusive exercise of discretion. In the case of an
administrative agency (more so, if it involves an independent
constitutional body), a matter cannot be considered ripe for
judicial resolution unless administrative remedies have been
exhausted. Judicial review is appropriate only if, at the very
least, those who have the power to address the petitioner’s
concerns have been given the opportunity to do so. In short,
the requirement of ripeness does not become less relevant
under the courts’ expanded judicial power. In this light, I
emphasize that the petition challenges RA 9006 and Comelec
Resolution No. 9165 not because its text, on its face, violates
fundamental rights, but because Comelec erroneously applied
an otherwise constitutional law. The Comelec’s administrative
act of including the petitioners’ poster within the coverage
of Comelec Resolution No. 9615 allegedly violated their
constitutional rights to freedom of speech and religion. x x x
To be sure, this is a matter that the Comelec should have been
given the first opportunity to resolve before the petitioners
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directly sought judicial recourse. While the freedoms invoked

by the petitioners certainly occupy preferential status in our
hierarchy of freedoms, the Court cannot second-guess what
the Comelec’s action would have been, particularly when the
matters before us are nothing more than the Election Officer
Majarucon’s notice and the Director Amora-Ladra’s order.
3. ID.; ID.; ID.; ID.; THE INCONSISTENCY IN THE BODY
OF THE MAJORITY DECISION AND ITS DISPOSITIVE
PORTION REFLECTS THE PREMATURITY OF THE
PETITION; THE MAJORITY DECISION APPARENTLY
MIXED THE CONCEPTS OF APPLIED AND FACIAL
CHALLENGES FOR IT GRANTED A REMEDY FOR
AS-APPLIED CHALLENGES UNDER THE REASONING
AND ANALYSIS MEANT FOR FACIAL CHALLENGES.—
[T]he majority opinion held that the Comelec’s interpretation
of its powers through the assailed letter and notice is
unconstitutional. x x x Under these terms, the majority
decision’s analysis is inconsistent with the remedy it granted
in its dispositive portion. This inconsistency reflects the
prematurity of the issues presented in the petition, as well as
the manner the ruling has prevented the Comelec en banc from
exercising its discretion to affirm or correct the actions of its
election officers. Note that despite the majority decision’s
pronouncements regarding the unconstitutionality of the size
restriction of posters (which form the basis for the
unconstitutionality of the Comelec’s administrative act), the
majority decision’s dispositive declaration of unconstitutionality
is directed at the Comelec’s administrative acts, without mention
of the constitutionality of the laws these administrative acts
apply. x x x The majority decision apparently mixed the
concepts of applied and facial challenges, such that it granted
a remedy for as-applied challenges, under the reasoning and
analysis meant for facial challenges. Thus, while the petition
seeks to declare the Comelec’s administrative acts to be
unconstitutional as applied to the petitioners, the majority
decision proceeded to analyze the case as the Court typically
would in facial challenges: it gave due course to the petition
because of the possibility of a chilling effect on speech, and
then proceeded to discuss the unconstitutionality of the laws
that the challenged administrative acts apply. The majority’s
uneven approach shows the prematurity of the issues that the
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petition presents. If indeed, the law is unconstitutional as

applied, then this would have been the defense to a possible
criminal proceeding against the petitioner. It cannot and
should not be used to pre-empt a criminal proceeding.
4. ID.; ELECTIONS; THE DISPUTED POSTER FALLS
UNDER ELECTION PROPAGANDA AS IT CLEARLY
ESPOUSES THE ELECTION OF SOME CANDIDATES
AND THE NON-ELECTION OF OTHER CANDIDATES
BECAUSE OF THEIR STANCE IN THE PASSAGE OF
THE RH LAW.— [T]he subject poster falls within the
definition of election propaganda. It named candidates for
the 2013 elections, and was clearly intended to promote the
election of a list of candidates it favors and to oppose the
election of candidates in another list. It was displayed in
public view, and as such is capable of drawing the attention
of the voting public passing by the cathedral to its message.
Notably, the tarpaulin places the words “conscience vote”
and associates the names of political candidates who voted
against the passage of the RH Law with the positive description
“Team Buhay, and associates the names of political candidates
who voted for the passage of the RH Law with the negative
description “Team Patay.” It even distinguishes between the
marks used to identify the candidates — the members of Team
Buhay are marked with the positive sign check mark and the
members of Team Patay are associated with the negative “X”
mark. The tarpaulin, obviously, invites voters to vote for
members of the Team Buhay and to not vote for the members
of the Team Patay because of their participation in the RH
Law. The word “conscience vote,” along with the positive
description and negative description for political candidates
during the election period at the time the tarpaulin was posted
for public view clearly indicates this. Under these terms, the
tarpaulin does not simply advocate support for the RH Law;
it asks the public to vote or not to vote for candidates based
on their position on the RH Law.
5. ID.; ID.; THE ASSAILED REGULATIONS IN CASE AT
BAR INVOLVE A CONTENT-NEUTRAL REGULATION
THAT CONTROLS THE INCIDENTS OF SPEECH.— The
assailed regulations in the present case involve a content-
neutral regulation that controls the incidents of speech. Both
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the notice and letter sent by the Comelec to the Diocese of

Bacolod sought to enforce Section 3.3 of RA 9006 and Section 6
(c) of Comelec Resolution No. 9615 which limits the size of
posters that contain election propaganda to not more than two
by three feet. It does not prohibit anyone from posting
materials that contain election propaganda, so long as it
meets the size limitations. Limitations on the size of a poster
involve a content-neutral regulation involving the manner
by which speech may be uttered. It regulates how the speech
shall be uttered, and does not, in any manner affect or target
the actual content of the message. That the incidents of speech
are restricted through government regulation do not
automatically taint them because they do not restrict the message
the poster itself carries. x x x [T]he size of the poster impacts
on the effectiveness of the communication and the gravity
of its message. Although size may be considered a part of
the message, this is an aspect that merely highlights the
content of the message. It is an incident of speech that
government can regulate, provided it meets the requirements
for content-neutral regulations.
6. ID.; ID.; THE SIZE RESTRICTIONS IN THE SUBJECT
REGULATIONS PASS THE INTERMEDIATE SCRUTINY
TEST APPLICABLE FOR CONTENT-NEUTRAL REGULATION;
REASONS.— The size restrictions in Section 6(c) of Comelec
Resolution No. 9615 and Section 3.3 of RA 9006 pass the
intermediate scrutiny applicable to content-neutral regulations,
thus: First, the size limitations for posters containing election
propaganda under these regulations are within the constitutional
power of Congress to enact and of the Comelec to enforce.
Section 2 (7), Article IX-C of the 1987 Constitution specifically
allows the time, manner, and place regulation of election
propaganda, which includes the size limitation of election
posters under RA 9006. As a law concerning conduct during
elections, RA 9006 falls well within the election laws that
the Comelec has the duty to administer and enforce under
Article IX-C, Section 2 (1) of the 1987 Constitution. Second,
the size limitation for posters containing election propaganda
furthers the important and substantial governmental interest
of ensuring equal opportunity for public information campaigns
among candidates, ensuring orderly elections and minimizing
election spending. x x x Third, the government’s interest in
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The Diocese of Bacolod, represented by the Most Rev. Bishop
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limiting the size of posters containing election propaganda

does not add to or restrict the freedom of expression. Its interests
in equalizing opportunity for public information campaigns
among candidates, minimizing election spending, and ensuring
orderly elections do not relate to the suppression of free
expression. x x x Fourth, the restriction on the poster’s size
affects the manner by which the speech may be uttered, but
this restriction is no greater than necessary to further the
government’s claimed interests.

APPEARANCES OF COUNSEL

Ralph A. Sarmiento, Raymundo T. Pandan, Jr. and Michelle

M. Abella for petitioners.
The Solicitor General for public respondents.

RESOLUTION

LEONEN, J.:

This Motion for Reconsideration1 filed by respondents prays

that this Court reconsider its January 21, 2015 Decision and
dismiss the Petition for lack of merit. 2 The dispositive portion
of the Decision reads:
WHEREFORE, the instant petition is GRANTED. The temporary
restraining order previously issued is hereby made permanent. The
act of the COMELEC in issuing the assailed notice dated February
22, 2013 letter dated February 27, 2013 is declared unconstitutional.
SO ORDERED.3 (Emphasis in the original)

First, respondents reiterate that the assailed notice and letter

are not final orders by the Commission on Elections En Banc
in the exercise of its quasi-judicial functions, thus, not subject

1
Rollo, pp. 284-307.
2
Id. at 306.
3
Id. at 246.
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to this Court’s review.4 Respondents contend that they merely

implemented the law when they issued the assailed notice and
letter. These are reviewable not by this Court but by the
Commission on Elections pursuant to Article IX-C, Section 2
(3) of the Constitution on its power to decide “all questions
affecting elections.”5 There are also remedies under Rule 34 of
the Commission on Elections Rules of Procedure on preliminary
investigation for election offenses. Respondents, thus, submit
that petitioners violated the rule on exhaustion of administrative
remedies. 6
Second, respondents submit that the tarpaulin is election
propaganda that the Commission on Elections may regulate.7 The
tarpaulin falls under the definition of election propaganda under
Section 1.4 of Commission on Elections Resolution No. 9615
for three reasons. First, it “contains the names of the candidates
and party-list groups who voted for or against the RH Law.”8
Second, “the check mark on ‘Team Buhay’ and the cross mark
on ‘Team Patay’ clearly suggests that those belonging to ‘Team
Buhay’ should be voted while those under ‘Team Patay’ should
be rejected during the May 13, 2013 elections.”9 Lastly, petitioners
posted the tarpaulin on the cathedral’s facade to draw attention.10
Respondents argue that the “IBASURA RH Law” tarpaulin
would have sufficed if opposition to the law was petitioners’
only objective. They submit that petitioners “infused their
political speech with election propaganda which may be regulated
by the COMELEC.”11 They further submit that it is immaterial

4
Id. at 286-287.
5
Id. at 288.
6
Id. at 289.
7
Id. at 290.
8
Id.
9
Id. at 291.
10
Id.
11
Id.
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The Diocese of Bacolod, represented by the Most Rev. Bishop
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that the posting was not “in return for consideration” by any
candidate or political party since the definition of election
propaganda does not specify by whom it is posted.12 Respondents
then discuss the history of the size limitation by mentioning
all previous laws providing for a 2’ by 3’ size limit for posters.13
According to respondents, petitioners raised violation of freedom
of expression and did not question the soundness of this size
limitation.14 Petitioners even cut the tarpaulin in half, thus
confirming that the tarpaulin is election propaganda.15
Third, respondents argue that size limitation applies to all
persons and entities without distinction,16 thus:
Notwithstanding that petitioners are not political candidates, the subject
tarpaulin is subject to the COMELEC’s regulation because petitioners’
objective in posting the same is clearly to persuade the public to
vote for or against the candidates and party-list groups named therein,
depending on their stand on the RH Law, which essentially makes
the subject tarpaulin a form of election propaganda.17
Respondents argue the general applicability of the Fair
Elections Act. Election propaganda should not be interchanged
with campaign materials as the latter is only one form of the
former. 18 Respondents submit that “[w]hen an election
propaganda is posted by a candidate or political party, it becomes
a campaign material subject to the COMELEC’s regulation under

12
Id.
13
Id. at 291-294. Respondents cite the following: Rep. Act No. 6388
(1971), Election Code of 1971, Sec. 48; Pres. Decree No. 1296 (1978),
1978 Election Code, Sec. 37; ELECTION CODE, Sec. 82; Rep. Act No.
6646 (1987), Electoral Reforms Law of 1987, Sec. 11; and Rep. Act No.
9006 (2000), Fair Elections Act, Sec. 3, reiterated in COMELEC Res. No.
9615, Sec. 6(c).
14
Id. at 294.
15
Id. at 295.
16
Id.
17
Id.
18
Id. at 297.
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Section 9 of the Fair Elections Act.”19 They argue that “the

Fair Elections Act regulates a variety of election-related activities
that are not only engaged in by candidates and political parties
but also by other individuals and entities” in that Section 4
regulates publications, printing, and broadcast, while Section
5 regulates election surveys.20 Assuming the Fair Elections Act
does not apply to private individuals, Section 82 of the Omnibus
Election Code still applies to all. 21 Respondents also quote
portions of the 1971 Election Code deliberations, in that the
prohibition covers a candidate’s follower who writes “Vote for
X” on his or her own shirt even if this is not mass-produced
since allowing this opens a wide loophole for possible abuse,
and the limitation ensures equality of access to all.22
Lastly, respondents argue that the size limitation is a valid
content-neutral regulation on election propaganda. As such,
only a substantial governmental interest is required under the
intermediate test.23 Respondents cite National Press Club v.
Commission on Elections24 in that “the supervisory and regulatory
functions of the COMELEC under the 1987 Constitution set to
some extent a limit on the right to free speech during the election
period.”25 The order to remove the tarpaulin for failure to comply
with the size limitation had nothing to do with the tarpaulin’s
message, and “petitioners could still say what they wanted to
say by utilizing other forms of media without necessarily
infringing the mandates of the law.” 26 Respondents cite
constitutional provisions as basis for regulating the use of election

19
Id.
20
Id. at 297-298.
21
Id. at 299.
22
Id. at 299-300.
23
Id. at 303.
24
283 Phil. 795 (1992) [Per J. Feliciano, En Banc].
25
Rollo, p. 303.
26
Id. at 304.
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propaganda such as political equality and election spending

minimization. 27
We deny the Motion for Reconsideration.
On respondents’ argument on the prematurity of filing the
case before this Court, we discussed in our Decision that Rule
64 is not the exclusive remedy for all Commission on Elections’
acts as Rule 65 applies for grave abuse of discretion resulting
to ouster of jurisdiction.28 The five (5) cases29 again cited by
respondents are not precedents since these involve election protests
or are disqualification cases filed by losing candidates against
winning candidates. 30
Petitioners are not candidates. They are asserting their right
to freedom of expression.31 We acknowledged the “chilling
effect” of the assailed notice and letter on this constitutional
right in our Decision, thus:
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.

27
Id. Respondents cite CONST., Art. IX-C, Secs. 2 (1), 2 (7), 4, and 10;
Art. II, Sec. 26; and Art. XIII, Sec. 1.
28
Id. at 182-183.
29
Id. at 286-287. Respondents cite Ambil v. Commission on Elections,
398 Phil. 257 (2000) [Per J. Pardo, En Banc]; Repol v. Commission on
Elections, G.R. No. 161418, April 28, 2004, 428 SCRA 321 [Per J. Carpio,
En Banc]; Soriano, Jr. v. Commission on Elections, 548 Phil. 639 (2007)
[Per J. Carpio, En Banc]; Blanco v. Commission on Elections, 577 Phil.
622 (2008) [Per Azcuna, En Banc]; and Cayetano v. Commission on Elections,
663 Phil. 694 (2011) [Per J. Nachura, En Banc].
30
Id. at 185.
31
Id.
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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 65 is also the procedural platform for raising grave
abuse of discretion.32
The urgency posed by the circumstances during respondents’
issuance of the assailed notice and letter — the then issue on
the RH Law as well as the then upcoming elections — also
rendered compliance with the doctrine on exhaustion of
administrative remedies as unreasonable. 33
All these circumstances surrounding this case led to this
Court’s pro hac vice ruling to allow due course to the Petition.
The other arguments have also been considered and thoroughly
addressed in our Decision.
This Court’s Decision discussed that the tarpaulin consists
of satire of political parties that “primarily advocates a stand
on a social issue; only secondarily — even almost incidentally
— will cause the election or non-election of a candidate.”34 It
is not election propaganda as its messages are different from
the usual declarative messages of candidates. The tarpaulin is
an expression with political consequences, and “[t]his court’s
construction of the guarantee of freedom of expression has always

32
Id. at 186-187.
33
Id. at 201.
34
Id. at 230.
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been wary of censorship or subsequent punishment that entails

evaluation of the speaker’s viewpoint or the content of one’s
speech.”35
We recognize that there can be a type of speech by private
citizens amounting to election paraphernalia that can be validly
regulated.36 However, this is not the situation in this case. The
twin tarpaulins consist of a social advocacy, and the regulation,
if applied in this case, fails the reasonability test.37
Lastly, the regulation is content-based. The Decision discussed
that “[t]he form of expression is just as important as the
information conveyed that it forms part of the expression[,]”38
and size does matter.39
WHEREFORE, the Motion for Reconsideration is DENIED
with FINALITY.
SO ORDERED.
Leonardo-de Castro, del Castillo, Perez, Reyes, and Perlas-
Bernabe, JJ., concur.
Carpio, J., reiterates his separate concurring opinion.
Peralta, J., joins the opinion of J. Carpio.
Caguioa, J., joins/concurs with J. Bernabe’s original separate
concurring opinion.
Velasco, Jr. and Bersamin, JJ., join the dissent of J. Brion.
Brion, J., see dissenting opinion.
Jardeleza, J.,no part.
Sereno, C.J. and Mendoza, J., on official leave.

35
Id. at 231.
36
Id. at 239.
37
Id.
38
Id. at 211.
39
Id.
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DISSENTING OPINION

BRION, J.:

I dissent from the ponencia’s denial of the Motion for

Reconsideration filed by respondents Commission on Elections
(Comelec) and Election Officer Atty. Mavil V. Majarucon asking
that the Court reconsider its January 21, 2015 Decision in Diocese
of Bacolod v. Comelec. The Decision granted petitioner Diocese
of Bacolod and Bishop Vicente Navarra’s (petitioners) Petition,
declared the Comelec’s Notice dated February 22, 2013, and
Letter dated February 27, 2013, as unconstitutional, and made
the temporary restraining order earlier issued against it permanent.
The ponencia denied the motion for reconsideration for raising
arguments already addressed and emphasized the following points:
First, Rule 64 of the Rules of Court is not the exclusive
remedy for all Comelec acts, as Rule 65 applies when grave
abuse of discretion takes place, resulting in lack or excess of
jurisdiction.
The petitioners, in asserting their right to freedom of
expression, allege the “chilling effect” of the assailed notice
and letter on this freedom, thus justifying their resort to the
Court through a Rule 65 petition.
Additionally, the urgency posed by the circumstances during
the Comelec’s issuance of the assailed notice and letter — the
then issue on the RH Law as well as the then coming elections
— also rendered the petitioners’ compliance with the doctrine
of exhaustion of administrative remedies unreasonable.
Second, the disputed tarpaulin is not an election propaganda
material. It involves a satire of political parties and primarily
advocates a stand on a social issue; the election or non-election
of a candidate is merely secondary and incidental to its message.
Third, the Comelec’s regulation of poster size is content-
based, as the form of expression is just as important as the
information conveyed that forms part of the expression.
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I disagree with the denial of the respondents’ motion for

reconsideration because of its jurisprudential effect: the currently
prevailing ruling substantially diminishes the Comelec’s
constitutional and exclusive jurisdiction to enforce and administer
all laws and regulations relative to the conduct of an election
under Article IX-C, Section 2 (1) of the 1987 Constitution,
including the regulation of election propaganda.
It also reduces the Comelec’s capacity under Article IX-C,
Section 2 (7) “to recommend to the Congress effective measures
to minimize election spending, including limitation of places
where propaganda materials shall be posted.”
To my mind, these constitutional provisions expressly and
clearly allow Congress to craft measures that regulate the time,
manner, and place of posting election propaganda, and that enable
the Comelec to fully implement these measures.
The size restrictions for election posters in Section 3.3 of
Republic Act No. 9006 (RA 9006, otherwise known as the Fair
Elections Act) is a lawful exercise of Congress’s power to regulate
election propaganda. The Comelec’s issuance of its implementing
rule, Section 6 (c) of Comelec Resolution No. 9615, and its
implementation in the present case through the Notice to Remove
Campaign Materials issued by Election Officer Mavil V.
Majarucon in a Letter dated February 22, 2013, and Comelec
Law Director Esmeralda Amora-Ladra in an Order dated February
27, 2013, had not been outside of the Comelec’s jurisdiction
to enforce and implement election laws.
I cannot also agree with the considerable departure that the
majority made from established jurisprudence in reviewing the
administrative actions of a constitutional commission and the
government’s regulation of speech; I do so not for the purposes
of instigating a criminal prosecution against the petitioners, as
events have made the issue moot and academic,1 but to correct
its impact on jurisprudence and constitutional litigation.

1
The passage of the election period has effectively made the issues in
the present petition moot and academic. Any decision on our part — whether
for the validity or invalidity of the Comelec’s actions would no longer affect
212 PHILIPPINE REPORTS
The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

I discuss below the reasons for my disagreement.

I. The petitions challenging the constitutionality of the
Comelec’s Letter and Notice are premature and should not
have been given due course.
A. The majority in Diocese of Bacolod v. Comelec took
cognizance of the Comelec’s administrative act without
the final imprimatur of the Comelec en banc, and thus
deprived it of its jurisdiction to determine the
constitutionality of the acts of its election officers.
The Court, in exceptional cases, may review the Comelec’s
administrative acts through the Court’s expanded jurisdiction
under the second paragraph of Article VIII, Section 1 of the
1987 Constitution. This constitutional authority is different from
the certiorari petition mentioned in Article IX-B, which pertains
to the Comelec’s quasi-judicial acts and is instituted through
Rule 64 of the Rules of Court.
Because the review of the Comelec’s administrative act falls
under the Court’s expanded jurisdiction (under the second
paragraph of Article VIII, Section 1), the petition must necessarily
reflect a prima facie showing of grave abuse of discretion on
the part of the Comelec.
In other words, the petition must have preliminarily shown
that the Comelec’s administrative act was performed in such a
capricious, and whimsical exercise of judgment so patent and
gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform a duty enjoined by law.
Note, at this point, that there can be no prima facie showing of
grave abuse of discretion unless something has already been done2

the rights of either the petitioners to post the subject posters, or the Comelec
to prosecute election offenses. See J. Brion’s Dissenting Opinion in Diocese
of Bacolod v. Comelec, p. 11.
2
In the case of a challenged law or official action, for instance, the
Court will not consider an issue ripe for judicial resolution, unless something
had already been done. Imbong v. Ochoa, Syjuico v. Abad, Bayan
Telecommunications v. Republic.
 VOL. 789, JULY 5, 2016 213
The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

or has taken place under the law;3 and the petitioner sufficiently
alleges the existence of a threatened or immediate injury to
itself as a result of the gravely abusive exercise of discretion. 4
In the case of an administrative agency (more so, if it involves
an independent constitutional body), a matter cannot be
considered ripe for judicial resolution unless administrative
remedies have been exhausted. 5 Judicial review is appropriate
only if, at the very least, those who have the power to address
the petitioner’s concerns have been given the opportunity to
do so. In short, the requirement of ripeness does not become
less relevant under the courts’ expanded judicial power.
In this light, I emphasize that the petition challenges RA
9006 and Comelec Resolution No. 9165 not because its text,
on its face, violates fundamental rights,6 but because Comelec
erroneously applied an otherwise constitutional law. The
Comelec’s administrative act of including the petitioners’ poster
within the coverage of Comelec Resolution No. 9615 allegedly
violated their constitutional rights to freedom of speech and
religion.

3
Mariano, Jr. v. Commission on Elections, G.R. No. 118577, March 7,
1995, 242 SCRA 211.
4
Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel, 589 Phil. 463, 481 (2008).
5
See Corales v. Republic, G.R. No. 186613, August 27, 2013.
6
This is in contrast to my discussion of a prima facie grave abuse of
discretion in Imbong v. Executive Secretary. In Imbong, the petition alleged
(and the Court eventually concluded) that the text of the Reproductive Health
Law violates the right to life of the unborn child in the Constitution. Congress,
in enacting a law that violates a fundamental right, committed a grave abuse
of discretion. Thus, citizens have an interest in stopping the implementation
of an unconstitutional law that could cause irreparable injury to the countless
unborn.
The constitutionality of the text of RA 9006, on the other hand, is not
in question in the present case. What the petitioners assail is their inclusion
within the coverage of election propaganda regulations in RA 9006 and
Comelec Resolution No. 9615.
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Navarra, et al. vs. COMELEC, et al.

This issue could have been best decided by the Comelec had
the petitioners followed the regular course of procedure in the
investigation and prosecution of election offense cases. The
assailed action of the Comelec, after all, contained a warning
against possible prosecution for an election offense that would
have had to undergo an entire process before it is filed before
the proper tribunal. This process allows suspected election
offenders to explain why an election offense should not be filed
against them, and for the Comelec to consider the explanation.
In the interest of orderly procedure and the respect for an
independent constitutional commission such as the Comelec,
on matters that are prima facie within its jurisdiction, the
expansion of the power of judicial review could not have meant
the power to review any and all acts of a department or office
within an administrative framework.
The Comelec under this Article IX-C, Section 2 (3) can
certainly decide whether to initiate a preliminary investigation
against the petitioners. It can decide based on the arguments
and pieces of evidence presented during the preliminary
investigation — whether there is probable cause to file an
information for an election offense against the petitioners. This
determination is even subject to review and reconsideration,
as Comelec Resolution No. 9386 (Rules of Procedure in the
Investigation and Prosecution of Election Offense Cases in
the Commission on Elections)7 clearly provide.

7
Section 6 of Comelec Resolution No. 9386 provides:
Section 6. Conduct of Preliminary Investigation. — Within ten (10)
days from receipt of the Complaint, the investigating officer shall issue a
subpoena to the respondent/s, attaching thereto a copy of the Complaint,
Affidavits and other supporting documents, giving said respondents ten (10)
days from receipt within which to submit Counter-Affidavits and other
supporting documents. The respondent shall have the right to examine all
other evidence submitted by the complainant. Otherwise, the Investigating
officer shall dismiss the Complaint if he finds no ground to continue with
the inquiry. Such Counter-Affidavits and other supporting evidence submitted
by the respondent shall be furnished by the latter to the complainant.
 VOL. 789, JULY 5, 2016 215
The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

To be sure, this is a matter that the Comelec should have

been given the first opportunity to resolve before the petitioners
directly sought judicial recourse. While the freedoms invoked
by the petitioners certainly occupy preferential status in our
hierarchy of freedoms, the Court cannot second-guess what the
Comelec’s action would have been, particularly when the matters
before us are nothing more than the Election Officer
Majarucon’s notice and the Director Amora-Ladra’s order.

If the respondent cannot be subpoenaed, or if subpoenaed, does not

submit Counter-Affidavits within the ten (10) day period, the investigating
officer shall base his Resolution on the evidence presented by the complainant.
If the investigating officer believes that there are matters to be clarified,
he may set a hearing to propound clarificatory questions to the parties or
their witnesses, during which the parties shall be afforded an opportunity
to be present, but without the right to examine or cross-examine. If the
parties so desire, they may submit questions to the investigating officer
which the latter may propound to the parties or witnesses concerned.
Thereafter, the investigation shall be deemed concluded, and the
investigating officer shall resolve the case within thirty (30) days therefrom.
Upon the evidence thus adduced, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial.
Where the respondent is a minor, the investigating officer shall not
conduct the preliminary investigation unless the child respondent shall have
first undergone the requisite proceedings before the Local Social Welfare
Development Officer pursuant to Republic Act No. 9344, otherwise known
as the “Juvenile Justice and Welfare Act of 2006.”
No motion, except on the ground of lack of jurisdiction or request for
extension of time to submit Counter-Affidavits shall be allowed or granted
except on exceptionally meritorious cases. Only one (1) Motion for Extension
to file Counter-Affidavit for a period not exceeding ten (10) days shall be
allowed. The filing of Reply-Affidavits, Rejoinder-Affidavits, Memoranda
and similar pleadings are likewise prohibited.
A Memorandum, Manifestation or Motion to Dismiss is a prohibitive
pleading and cannot take the place of a Counter-Affidavit unless the same
is made by the respondent himself and verified.
When an issue of a prejudicial question is raised in the Counter-Affidavit,
the investigating officer shall suspend preliminary investigation if its existence
is satisfactorily established. All orders suspending the preliminary
investigation based on existence of prejudicial question issued by the
investigating officer shall have the written approval of the Regional Election
Director or the Director of the Law Department, as the case may be.
216 PHILIPPINE REPORTS
The Diocese of Bacolod, represented by the Most Rev. Bishop
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B. The inconsistency in the majority’s analysis and its

dispositive portion reflect and indicate the prematurity
of the petitioners’ immediate recourse to the Court.
According to the majority, the present petition was given
due course because the Comelec’s acts had a chilling effect on
speech, which justifies the petitioners’ immediate resort to the
Court under a Rule 65 certiorari petition. It then proceeded to
argue that the speech involved does not fall under the classification
of election propaganda; to classify the laws empowering the
Comelec to regulate the size of election posters’ size as a content-
based regulation; and to hold that, in any case, size restriction
of posters does not pass constitutional muster whether under the
compelling state interest test for content-based regulations or
intermediate scrutiny test for content-neutral regulations.
Based on these arguments, the majority opinion held that
the Comelec’s interpretation of its powers through the assailed
letter and notice is unconstitutional. Thus, the dispositive portion
of the main decision reads:
WHEREFORE, the instant petition is GRANTED. The temporary
restraining order previously issued is hereby made permanent. The
act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013, is declared
unconstitutional. [emphasis supplied]
Under these terms, the majority decision’s analysis is
inconsistent with the remedy it granted in its dispositive portion.
This inconsistency reflects the prematurity of the issues presented
in the petition, as well as the manner the ruling has prevented
the Comelec en banc from exercising its discretion to affirm
or correct the actions of its election officers.
Note that despite the majority decision’s pronouncements
regarding the unconstitutionality of the size restriction of posters
(which form the basis for the unconstitutionality of the Comelec’s
administrative act), the majority decision’s dispositive declaration
of unconstitutionality is directed at the Comelec’s administrative
acts, without mention of the constitutionality of the laws these
administrative acts apply. In marked contrast, Justice Antonio
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The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

T. Carpio’s Separate Concurring Opinion grants the petition

and declares the laws limiting the size of election posters as
unconstitutional, thus:
Accordingly, I vote to GRANT the petition and DECLARE
UNCONSTITUTIONAL (1) Section 3.3 of Republic Act No. 9006;
(2) Section 6(c) of COMELEC Resolution No. 9615, dated 15 January
2013; and (3) the notices, dated 22 February 2013 and 27 February
2013, of the Commission on Elections for being violative of Section
4, Article III of the Constitution.
The disparity between the discussion in the body of the
majority decision and the content of its dispositive portion leads
me to ask: is the size restriction constitutional, but
unconstitutional as applied to the petitioners? May the Comelec
still regulate the size of election posters of candidates, and under
what parameters?
In decisions declaring a law’s unconstitutionality as applied
to the petitioner, the assailed law remains valid, but its application
to the individual challenging it (and subsequently to others
similarly situated) is unconstitutional.
If indeed the majority decision had treated the petition in
this case as an as-applied challenge to the constitutionality of
Section 3 of RA 9006 and Section 6 (c) of Comelec Resolution
No. 9615, then the issues it presented to the Court were premature.
As-applied challenges to the constitutionality of the law
prosper only when there has been an enforcement of the law to
the individual claiming exemption from its application. In other
words, the challenged law must have been enforced and has
already been applied to the petitioner, i.e., at the very least,
the Comelec en banc must have rendered its decision to prosecute
the petitioners and institute an election offense against them.
Notably, this was not what happened, as the administrative
acts of the Comelec’s election officer and law department had
been restrained before the issue of the unconstitutionality of
the letter and order issued against the petitioners could be validly
assessed by the Comelec. Thus, the petition assailed the
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administrative acts of the Comelec’s Law Department and

election officer before it could be affirmed by the Comelec,
and before any quasi-judicial proceeding for the prosecution
of an election offense could be instituted and resolved.
In contrast, facial challenges may be introduced against a
law soon after its passage, typically because these laws pose a
chilling effect on the exercise of fundamental rights, such as
speech. The petitioners instituting a petition asking for a facial
challenge of the law has the burden to prove that the law does
not have any constitutional application, that is, that the law is
unconstitutional in all its applications. Upon meeting this burden,
the decision would have declared the challenged law as
unconstitutional.
The present petitions, however, challenge the Comelec’s
administrative acts — not the laws it seeks to implement —
and thereby raise issues that are applicable only to them.
The majority decision apparently mixed the concepts of applied
and facial challenges, such that it granted a remedy for as-applied
challenges, under the reasoning and analysis meant for facial
challenges.
Thus, while the petition seeks to declare the Comelec’s
administrative acts to be unconstitutional as applied to the
petitioners, the majority decision proceeded to analyze the case
as the Court typically would in facial challenges: it gave due
course to the petition because of the possibility of a chilling
effect on speech, and then proceeded to discuss the
unconstitutionality of the laws that the challenged administrative
acts apply.
The majority’s uneven approach shows the prematurity of
the issues that the petition presents. If indeed, the law is
unconstitutional as applied, then this would have been the
defense to a possible criminal proceeding against the petitioner.
It cannot and should not be used to pre-empt a criminal
proceeding.
 VOL. 789, JULY 5, 2016 219
The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

Indeed, our expanded jurisdiction under Section 1, Article

VIII of the 1987 Constitution allows us to determine grave abuse
of discretion in the actions of governmental agencies, and has
considerably reduced the requirements of standing in
constitutional litigation. The recognition of this expanded
jurisdiction has led me to theorize, in several previous opinions,
that a prima facie showing of grave abuse of discretion is
sufficient to trigger the Court’s expanded jurisdiction. The
simplicity of this requirement does not diminish the gravity of
the petitioners’ burden to preliminarily prove that the Comelec
acted in an arbitrary and capricious manner outside of what
the law and the Constitution allows it to do.
As I have discussed earlier, the petitioners have failed in
their burden of showing this triggering requirement before the
Court; as the petition had been prematurely filed, whether via
the traditional constitutional litigation route or by way of the
Court’s expanded jurisdiction.
II. The disputed tarpaulin falls under election propaganda
as it clearly espouses the election of some candidates and
the non-election of other candidates because of their stance
in the passage of the RH Law.
The subject poster carries the following characteristics:
(1) It was posted during the campaign period, by private
individuals and within a private compound housing the
San Sebastian Cathedral of Bacolod.
(2) It was posted with another tarpaulin with the message
“RH LAW IBASURA.”
(3) Both tarpaulins were approximately six by ten feet in
size, and were posted in front of the Cathedral within
public view.
(4) The subject poster contains the heading “conscience
vote” and two lists of senators and members of the
House of Representatives. The first list contains names
of legislators who voted against the passage of the
Reproductive Health Law, denominated as Team Buhay.
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The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

The second list contains names of legislators who voted

for the RH Law’s passage, denominated as “Team Patay.”
The “Team Buhay” list displayed a check mark, while
the Team Patay list showed an X mark. All the legislators
named in both lists were candidates during the 2013
national elections.
(5) It does not appear to have been sponsored or paid for
by any candidate.
The content of the tarpaulin, as well as the timing of its posting,
makes it subject to the regulations in RA 9006 and Comelec
Resolution No. 9615.
Comelec Resolution No. 9615 contains rules and regulations
implementing RA 9006 during the 2013 national elections.
Section 3 of RA 9006 and Section 6 of Comelec Resolution
No. 9615 seek to regulate election propaganda, defined in the
latter as:
The term “political advertisement” or “election propaganda” refers
to any matter broadcasted, published, printed, displayed or exhibited,
in any medium, which contain the name, image, logo, brand, insignia,
color motif, initials, and other symbol or graphic representation that
is capable of being associated with a candidate or party, and is
intended to draw the attention of the public or a segment thereof
to promote or oppose, directly or indirectly, the election of the said
candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows
and radio programs, live or taped announcements, teasers, and other
forms of advertising messages or announcements used by commercial
advertisers.
Political advertising includes matters, not falling within the scope
of personal opinion, that appear on any Internet website, including,
but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary
estimation. [emphasis supplied]
Based on these definitions, the subject poster falls within
the definition of election propaganda. It named candidates
for the 2013 elections, and was clearly intended to promote
 VOL. 789, JULY 5, 2016 221
The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

the election of a list of candidates it favors and to oppose the

election of candidates in another list. It was displayed in public
view, and as such is capable of drawing the attention of the
voting public passing by the cathedral to its message.
Notably, the tarpaulin places the words “conscience vote”
and associates the names of political candidates who voted against
the passage of the RH Law with the positive description “Team
Buhay, and associates the names of political candidates who
voted for the passage of the RH Law with the negative description
“Team Patay.” It even distinguishes between the marks used
to identify the candidates — the members of Team Buhay are
marked with the positive sign check mark and the members of
Team Patay are associated with the negative “X” mark.
The tarpaulin, obviously, invites voters to vote for members
of the Team Buhay and to not vote for the members of the
Team Patay because of their participation in the RH Law. The
word “conscience vote,” along with the positive description
and negative description for political candidates during the
election period at the time the tarpaulin was posted for public
view clearly indicates this. Under these terms, the tarpaulin
does not simply advocate support for the RH Law; it asks the
public to vote or not to vote for candidates based on their position
on the RH Law.
In this light, I strongly object to the ponencia’s characterization
of the tarpaulin as “primarily advocates a stand on a social
issue; [sic] only secondarily — even almost incidentally —
will cause the election or non-election of a candidate,” and
declaration that the tarpaulin is “not election propaganda as
the messages are different from the usual declarative messages
of candidates.”
This is a dangerous justification that could, with some creative
tinkering by interested parties, blur the distinctions determining
what consists an election propaganda to the point of eradicating
it. To illustrate, anyone could put a social issue as the justification
for voting or not voting for a candidate, and claim that the
paraphernalia merely incidentally intends to convince voters
of their voting preferences.
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Navarra, et al. vs. COMELEC, et al.

Furthermore, requiring a declarative message from the

candidate to vote or not vote for a candidate significantly narrows
down the coverage of what constitutes as election propaganda,
and excludes propaganda that convey the same message, but
do not necessarily use a declarative statement.
In these lights, the ponente’s interpretation of election
propaganda could render the entire regulation of election
propaganda as defined under Section 3 of RA 9006 inutile, as
it creates loopholes that would take any propaganda (and possibly
not just election posters) outside the definition of election
propaganda. Most certainly, I cannot concur with this position.
III. The regulation of poster size under the Omnibus Election
Code is a valid content-neutral regulation of speech.
A. The regulation of poster size as a content-neutral
regulation.
The assailed regulations in the present case involve a content-
neutral regulation that controls the incidents of speech. Both
the notice and letter sent by the Comelec to the Diocese of
Bacolod sought to enforce Section 3.3 of RA 9006 and Section 6
(c) of Comelec Resolution No. 9615 which limits the size of
posters that contain election propaganda to not more than two
by three feet. It does not prohibit anyone from posting materials
that contain election propaganda, so long as it meets the size
limitations.
Limitations on the size of a poster involve a content-neutral
regulation involving the manner by which speech may be
uttered. It regulates how the speech shall be uttered, and does
not, in any manner affect or target the actual content of the
message.
That the incidents of speech are restricted through government
regulation do not automatically taint them because they do not
restrict the message the poster itself carries. Again, for emphasis,
Comelec Resolution No. 9615 and RA 9006 regulate how the
message shall be transmitted, and not the contents of the message
itself.
 VOL. 789, JULY 5, 2016 223
The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

Admittedly, the size of the poster impacts on the effectiveness

of the communication and the gravity of its message. Although
size may be considered a part of the message, this is an aspect
that merely highlights the content of the message. It is an
incident of speech that government can regulate, provided it
meets the requirements for content-neutral regulations.
The message in the subject poster is transmitted through the
text and symbols that it contains. We can, by analogy, compare
the size of the poster to the volume of the sound of a message. 8
A blank poster, for instance and as a rule, does not convey any
message regardless of its size (unless, of course, vacuity itself
is the message being conveyed). In the same manner, a sound
or utterance, without words or tunes spoken or played, cannot
be considered a message regardless of its volume. We
communicate with each other by symbols — written, verbal,
or illustrated — and these communications are what the freedom
of speech protects, not the manner by which these symbols are
conveyed.
B. The regulation passes the intermediate scrutiny test
applicable for content-neutral regulations.
The size restrictions in Section 6 (c) of Comelec Resolution
No. 9615 and Section 3.3 of RA 9006 pass the intermediate
scrutiny 9 applicable to content-neutral regulations, thus:

8
See: Regan v. Time, 468 U.S. 641; 104 S. Ct. 3262; 82 L. Ed. 2d 487;
1984 U.S. LEXIS 147; 52 U.S.L.W. 5084, citing Kovacs v. Cooper, 336
U.S. 77 (1949).
9
Philippine jurisprudence distinguishes between the regulation of speech
that is content-based, from regulation that is content-neutral. Content-based
regulations regulate speech because of the substance of the message it conveys.
In contrast, content-neutral regulations are merely concerned with the incidents
of speech: the time, place or manner of the speech’s utterance under well-
defined standards.
Distinguishing the nature of the regulation is crucial in cases involving
freedom of speech, as it determines the test the Court shall apply in determining
its validity.
Content-based regulations are viewed with a heavy presumption of
unconstitutionality. Thus, the government has the burden of showing that
224 PHILIPPINE REPORTS
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Navarra, et al. vs. COMELEC, et al.

First, the size limitations for posters containing election

propaganda under these regulations are within the constitutional
power of Congress to enact and of the Comelec to enforce.
Section 2 (7), Article IX-C of the 1987 Constitution
specifically allows the time, manner, and place regulation of
election propaganda, which includes the size limitation of election
posters under RA 9006. As a law concerning conduct during
elections, RA 9006 falls well within the election laws that the
Comelec has the duty to administer and enforce under Article
IX-C, Section 2(1) of the 1987 Constitution.
Second, the size limitation for posters containing election
propaganda furthers the important and substantial governmental
interest of ensuring equal opportunity for public information
campaigns among candidates, ensuring orderly elections and
minimizing election spending.
A cap on the size of a poster ensures, to some extent, uniformity
in the medium through which information on candidates may
be conveyed to the public. It effectively bars candidates,
supporters, or detractors from using posters too large that they
result in skewed attention from the public. The limitation also
prevents the candidates and their supporting parties from
engaging in a battle of poster sizes and, in this sense, serves to
minimize election spending and contributes to the maintenance
of peace and order during the election period.
Third, the government’s interest in limiting the size of posters
containing election propaganda does not add to or restrict the

the regulation is narrowly tailored to meet a compelling state interest,

otherwise, the Court will strike it down as unconstitutional.
In contrast, content-neutral regulations are not presumed unconstitutional.
They pass constitutional muster once they meet the following requirements:
first, that the regulation is within the constitutional power of the Government
second, that it furthers an important or substantial governmental interest;
third, that the governmental interest is unrelated to the suppression of free
expression; and fourth, that the incidental restriction on speech is no greater
than is essential to further that interest.
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The Diocese of Bacolod, represented by the Most Rev. Bishop
Navarra, et al. vs. COMELEC, et al.

freedom of expression. Its interests in equalizing opportunity

for public information campaigns among candidates, minimizing
election spending, and ensuring orderly elections do not relate
to the suppression of free expression.
Fourth, the restriction on the poster’s size affects the manner
by which the speech may be uttered, but this restriction is no greater
than necessary to further the government’s claimed interests.
Size limits to posters are necessary to ensure equality of
public information campaigns among candidates, as allowing
posters with different sizes gives candidates and their supporters
the incentive to post larger posters. This places candidates with
more money and/or with deep-pocket supporters at an undue
advantage against candidates with more humble financial
capabilities.
Notably, the law does not limit the number of posters that
a candidate, his supporter, or a private individual may post. If
the size of posters becomes unlimited as well, then candidates
and parties with bigger campaign funds could effectively crowd
out public information on candidates with less money to spend
to secure posters — the former’s bigger posters and sheer number
could effectively take the attention away from the latter’s
message. In the same manner, a lack of size limitation would
also crowd out private, unaffiliated individuals from participating
in the discussion through posters, or at the very least, would
compel them to erect bigger posters and thus spend more.
Prohibiting size restrictions on posters is also related to election
spending, as it would allow candidates and their supporters to
post as many and as large posters as their pockets would allow.