1-United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14, 2015
Ponente: REYES J.
A petition for certiorari under Rule 64 and Rule 65
Facts:
Feb.
12, 2001,RA No. 9006, otherwise known as the "Fair Elections Act",
was passed. Section 9 thereof provides:
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect common poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit election propaganda: Provided that the size of the poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in public places or property which shall be allocated equitably and impartially among the candidates.
On Jan. 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided for the rules implementing R.A. No. 9006 in connection with the May 13, 2013 national and local elections and subsequent elections. Section 7 thereof, which enumerates the prohibited forms of election propaganda, pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign period, it is unlawful:
x
x x x
(f)
To post, display or exhibit any election campaign or propaganda material
outside of authorized common poster areas, in public places, or in private
properties without the consent of the owner thereof.
(g)
Public places referred to in the previous subsection (f) include any of the
following:
x
x x x
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and tricycles, whether motorized or not;
6.
Within the premises of public transport terminals, such as bus terminals,
airports, seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the revocation of the public utility franchise and will make the owner and/or operator of the transportation service and/or terminal liable for an election offense under Section 9 of A No. 9006 as implemented by Section 18 (n) of these Rules.
In its letter dated Jan. 30, 2013, P, through its president, Melencio F. Vargas, sought clarification from the COMELEC as regards the application of Resolution No. 9615. The P explained that the prohibition stated in the aforementioned provisions impedes the right to free speech of the private owners of PUVs and transport terminals. The P then requested the COMELEC to reconsider the implementation of the assailed provisions and allow private owners of PUVs and transport terminals to post election campaign materials on their vehicles and transport terminals.
Feb. 5, 2013, the COMELEC en banc issued Minute Resolution No. 13-0214,5 which denied the petitioner's request to reconsider the implementation of Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615.
Petitioner then filed a petition for certiorari under Rule 64 and Rule 65 of the RoC, assailing Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 96152 of the COMELEC.
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Petitioner's Position:
- Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615 violate the right to free speech of the owners of PUVs and transport
terminals
- the prohibition curtails their ideas of who
should be voted by the public.
- there is no substantial public interest threatened by the posting of political
advertisements on PUVs and transport terminals to warrant the prohibition
imposed by the COMELEC.
- the ownership of the PUVs per se, as well as the transport terminals, remains
private and, hence, the owners thereof could not be prohibited by the COMELEC
from expressing their political opinion lest their property rights be unduly
intruded upon.
- assuming that substantial public interest exists, the curtailment of the right
to free speech of the owners of PUVs and transport terminals is much greater
than is necessary to achieve the desired governmental purpose, i.e., ensuring
equality of opportunity to all candidates in elective office.
COMELEC's Position:
- privately-owned PUVs and transport terminals are public spaces that are subject
to its regulation. Under the Constitution, the COMELEC has the power to enforce
and administer all laws and regulations relative to the conduct of an election,
including the power to regulate the enjoyment or utilization of all franchises
and permits for the operation of transportation utilities.
- PUVs and private transport terminals hold a captive audience - the commuters,
who have no choice but be subjected to the blare of political propaganda. Thus,
it is within its constitutional authority to prevent privately-owned PUVs and
transport terminals from concurrently serving campaign materials to the captive
audience that they transport.
- Resolution No. 9615 is a valid content-neutral regulation and, thus, does not
impinge on the constitutional right to freedom of speech. The assailed
regulation is within the constitutional power of the COMELEC pursuant to Section
4, Article IX-C of the Constitution. The regulation simply aims to ensure equal
campaign opportunity, time, and space for all candidates - an important and
substantial governmental interest, which is totally unrelated to the
suppression of free expression; that any restriction on free speech is merely
incidental and is no greater than is essential to the furtherance of the said
governmental interest.
WON Resolution No. 9615 violates the right of free specch of the owners of PUVs and transport terminals.
Held:
Yes
Section
7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
unduly infringe on the fundamental right of the people to freedom of speech.
Central to the prohibition is the freedom of individuals, i.e., the owners of
PUVs and private transport terminals, to express their preference, through the
posting of election campaign material in their property, and convince others to
agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign material during an election period in PUVs and transport terminals carries with it the penalty of revocation of the public utility franchise and shall make the owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free expression of the owners of PUVs and transport terminals. As a result of the prohibition, owners of PUVs and transport terminals are forcefully and effectively inhibited from expressing their preferences under the pain of indictment for an election offense and the revocation of their franchise or permit to operate.
It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a preferred status in our hierarchy of rights. The rationale is that the preservation of other rights depends on how well we protect our freedom of speech and of the press. It has been our constant holding that this preferred freedom calls all the more for utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.
WON Resolution No. 9615 is void and is a restraint to free speech and expression for failure to satisfy the O'Brien Test.
Held:
Yes.
A
content-neutral regulation, i.e., which is merely concerned with the incidents
of the speech, or one that merely controls the time, place or manner, and under
well-defined standards,16 is constitutionally permissible, even if it restricts
the right to free speech, provided that the following requisites concur: first,
the government regulation is within the constitutional power of the Government;
second, it furthers an important or substantial governmental interest; third,
the governmental interest is unrelated to the suppression of free expression;
and fourth, the incidental restriction on freedom of expression is no greater
than is essential to the furtherance of that interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations since they merely control the place where election campaign materials may be posted. However, the prohibition is still repugnant to the free speech clause as it fails to satisfy all of the requisites for a valid content-neutral regulation.
It
is conceded that Resolution No. 9615, including the herein assailed provisions,
furthers an important and substantial governmental interest, i.e., ensuring
equal opportunity, time and space among candidates aimed at the holding of
free, orderly, honest, peaceful, and credible elections. It is further conceded
that the governmental interest in imposing the said prohibition is unrelated to
the suppression of free expression. However, Section 7(g) items (5) and (6),
in relation to Section 7(f), of Resolution No. 9615, are not within the constitutionally
delegated power of the COMELEC under Section 4, Article IX-C of the
Constitution. Also, there is absolutely no necessity to restrict the right to
free speech of the owners of PUVs and transport terminals.
(a.1) WON the ownership of facilities is different and independent from the franchise or operation of the public utiliy, the former being beyond the power of regulation by the COMELEC.
Held:
Yes
The
prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f),
of Resolution No. 9615 is not within the COMELEC's constitutionally delegated
power of supervision or regulation. It is not disputed that the COMELEC has the
power to supervise or regulate the enjoyment or utilization of all franchises
or permits for the operation of transportation utilities during an election
period.
Nevertheless, the constitutional grant of supervisory and regulatory powers to the COMELEC over franchises and permits to operate, though seemingly unrestrained, has its limits.
In
Adiong, the Court held that the COMELEC's supervisory power does not extend to
the very freedom of an individual to express his preference of candidates in an
election by placing election campaign stickers on his vehicle.
In National Press Club v. COMELEC, it was emphasized that the grant of supervisory and regulatory powers to the COMELEC under Section 4, Article IX-C of the Constitution, is limited to ensuring equal opportunity, time, space, and the right to reply among candidates.
Further,
in Social Weather Stations, Inc. v. COMELEC, the Court declared
unconstitutional a regulation prohibiting the release of election surveys prior
to the election since it "actually suppresses a whole class of expression,
while allowing the expression of opinion concerning the same subject matter by
newspaper columnists, radio and [television (TV)] commentators, armchair
theorists, and other opinion makers."
In the instant case, the Court further delineates the constitutional grant of supervisory and regulatory powers to the COMELEC during an election period. As worded, Section 4, Article IX-C of the Constitution only grants COMELEC supervisory and regulatory powers over the enjoyment or utilization "of all franchises or permits for the operation," inter alia, of transportation and other public utilities. The COMELEC's constitutionally delegated powers of supervision and regulation do not extend to the ownership per se of PUVs and transport terminals, but only to the franchise or permit to operate the same.
There
is a marked difference between the franchise or permit to operate
transportation for the use of the public and the ownership per se of the
vehicles used for public transport.
In
Tatad v. Garcia, Jr.:
In
law, there is a clear distinction between the "operation" of a public
utility and the ownership of the facilities and equipment used to serve the
public.
x
x x x
The right to operate a public utility may exist independently and separately from the ownership of the facilities thereof. One can own said facilities without operating them as a public utility, or conversely, one may operate a public utility without owning the facilities used to serve the public.
The franchise or permit to operate transportation utilities is a privilege granted to certain persons to engage in the business of transporting people or goods; it does not refer to the ownership of the vehicle per se. Ownership is a relation in private law by virtue of which a thing pertaining to one person is completely subjected to his will in everything not prohibited by public law or the concurrence with the rights of another. Thus, the owner of a thing has the right to enjoy and dispose of a thing, without other limitations than those established by law.
One such limitation established by law, as regards PUVs, is the franchise or permit to operate. However, a franchise or permit to operate a PUV is a limitation only on certain aspects of the ownership of the vehicle pertinent to the franchise or permit granted, but not on the totality of the rights of the owner over the vehicle.
A franchise or permit to operate transportation utilities pertains to considerations affecting the operation of the PUV as such, e.g., safety of the passengers, routes or zones of operation, maintenance of the vehicle, of reasonable fares, rates, and other charges, or, in certain cases, nationality. Thus, a government issuance, which purports to regulate a franchise or permit to operate PUVs, must pertain to the considerations affecting its operation as such. Otherwise, it becomes a regulation or supervision not on the franchise or permit to operate, but on the very ownership of the vehicle used for public transport.
The expression of ideas or opinion of an owner of a PUV, through the posting of election campaign materials on the vehicle, does not affect considerations pertinent to the operation of the PUV.
(a.2)
WON the constitutional objective to give a equal opportunity to inform the electorate is impared by positing policital advertisements on PUVs and transport terminals.
Held:
No
In the same manner, the COMELEC does not have the constitutional power to regulate public transport terminals owned by private persons. The ownership of transport terminals, even if made available for use by the public commuters, likewise remains private. Although owners of public transport terminals may be required by local governments to obtain permits in order to operate, the permit only pertains to circumstances affecting the operation of the transport terminal as such. The regulation of such permit to operate should similarly be limited to circumstances affecting the operation of the transport terminal. A regulation of public transport terminals based on extraneous circumstances, such as prohibiting the posting of election campaign materials thereon, amounts to regulating the ownership of the transport terminal and not merely the permit to operate the same.
(b) There is absolutely no necessity to restrict the right of the owners of PUVs and transport terminals to free speech to further the governmental interest.
First, while Resolution No. 9615 was promulgated by the COMELEC to implement the provisions of R.A. No. 9006, the prohibition on posting of election campaign materials on PUVs and transport terminals was not provided for therein.
Second, there are more than sufficient provisions in our present election laws that would ensure equal time, space, and opportunity to candidates in elections. Section 6 of R.A. No. 9006 mandates that "all registered parties and bona fide candidates shall have equal access to media time and space" and outlines the guidelines to be observed in the implementation thereof.
Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses of registered political parties and candidates for every voter; it affords candidates equal opportunity in their election campaign by regulating the amount that should be spent for each voter. Likewise, Section 1429 of R.A. No. 7166 requires all candidates and treasurers of registered political parties to submit a statement of all contributions and expenditures in connection with the election. Section 14 is a post-audit measure that aims to ensure that the candidates did not overspend in their election campaign, thereby enforcing the grant of equal opportunity to candidates under Section 13.
A
strict implementation of the foregoing provisions of law would suffice to
achieve the governmental interest of ensuring equal time, space, and
opportunity for candidates in elections. There is thus no necessity of still
curtailing the right to free speech of the owners of PUVs and transport
terminals by prohibiting them from posting election campaign materials on their
properties.
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Others Important Notes:
(1)
The captive-audience doctrine states that when a listener cannot, as a
practical matter, escape from intrusive speech, the speech can be restricted. The "captive-audience" doctrine recognizes that a listener has a
right not to be exposed to an unwanted message in circumstances in which the
communication cannot be avoided.
Thus, a government regulation based on the captive-audience doctrine may not be justified if the supposed "captive audience" may avoid exposure to the otherwise intrusive speech. The prohibition under Section 7(g) items (5) and (6) of Resolution No. 9615 is not justified under the captive-audience doctrine; the commuters are not forced or compelled to read the election campaign materials posted on PUVs and transport terminals. Nor are they incapable of declining to receive the messages contained in the posted election campaign materials since they may simply avert their eyes if they find the same unbearably intrusive.
(2) Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free speech clause, but also of the equal protection clause.
In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four requisites of valid classification be complied with, namely: (1) it must be based upon substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the class.
It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No. 9615 is not limited to existing conditions and applies equally to the members of the purported class. However, the classification remains constitutionally impermissible since it is not based on substantial distinction and is not germane to the purpose of the law.
A distinction exists between PUVs and transport terminals and private vehicles and other properties in that the former, to be considered as such, needs to secure from the government either a franchise or a permit to operate. Nevertheless, the prohibition imposed under Section 7(g) items (5) and (6) of Resolution No. 9615 regulates the ownership per se of the PUV and transport terminals; the prohibition does not in any manner affect the franchise or permit to operate of the PUV and transport terminals.
As
regards ownership, there is no substantial distinction between owners of PUVs
and transport terminals and owners of private vehicles and other properties.
The ownership of PUVs and transport terminals, though made available for use by
the public, remains private. If owners of private vehicles and other properties
are allowed to express their political ideas and opinion by posting election
campaign materials on their properties, there is no cogent reason to deny the
same preferred right to owners of PUVs and transport terminals. In terms of
ownership, the distinction between owners of PUVs and transport terminals and
owners of private vehicles and properties is merely superficial. Superficial
differences do not make for a valid classification.
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The fact that PUVs and transport terminals are made available for use by the public is likewise not substantial justification to set them apart from private vehicles and other properties. Admittedly, any election campaign material that would be posted on PUVs and transport terminals would be seen by many people. However, election campaign materials posted on private vehicles and other places frequented by the public, e.g., commercial establishments, would also be seen by many people. Thus, there is no reason to single out owners of PUVs and transport terminals in the prohibition against posting of election campaign materials.
Further, classifying owners of PUVs and transport terminals apart from owners of private vehicles and other properties bears no relation to the stated purpose of Section 7(g) items (5) and (6) of Resolution No. 9615, i.e., to provide equal time, space and opportunity to candidates in elections. To stress, PUVs and transport terminals are private properties. Indeed, the nexus between the restriction on the freedom of expression of owners of PUVs and transport terminals and the government's interest in ensuring equal time, space, and opportunity for candidates in elections was not established by the COMELEC.
DECISION: The instant petition is hereby GRANTED.
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615 issued by the Commission on Elections are hereby declared NULL and VOID
for being repugnant to Sections 1 and 4, Article III of the 1987 Constitution.
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