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223705

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G.R. No. 223705, August 14, 2019,

♦ Decision, Reyes, Jr., [J]
♦ Concurring Opinion, Perlas-Bernabe, [J]
♦ Separate Concurring Opinion, Leonen, [J]
♦ Separate Concurring Opinion, Jardeleza, [J]

Manila

EN BANC

[ G.R. No. 223705. August 14, 2019 ]

LOIDA NICOLAS-LEWIS, PETITIONER, VS. COMMISSION ON ELECTIONS, RESPONDENT.

DECISION

REYES, J. JR., J.:

On grounds of violation of the freedom of speech, of expression, and of assembly; denial of substantive due
process; violation of the equal protection clause; and violation of the territoriality principle in criminal cases, Loida
Nicolas-Lewis (petitioner) seeks to declare as unconstitutional Section 36.8 of Republic Act (R.A.) No. 9189, as
amended by R.A. No. 105901 and Section 74(II)(8) of the Commission on Elections (COMELEC) Resolution No.
10035,2 which prohibit the engagement of any person in partisan political activities abroad during the 30-day
overseas voting period.

Relevant Antecedents

On February 13, 2003, R.A. No. 9189, entitled "An Act Providing for a System of Overseas Absentee Voting by
Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for other Purposes," also known as
"The Overseas Absentee Voting Act of 2003," was enacted. Its purpose is to ensure equal opportunity to all qualified
Filipino citizens abroad to exercise the fundamental right of suffrage pursuant to Section 2, Article V3 of the 1987
Constitution.

In 2012, certain amendments to R.A. No. 9189 were proposed both by the House of Representatives and the
Senate through House Bill No. 6542 and Senate Bill No. 3312, respectively.

Consequently, R.A. No. 9189 was amended by R.A. No. 10590 or "The Overseas Voting Act of 2013."

Of relevance in the instant petition is Section 37 of R.A. No. 10590 which renumbered Section 24 of R.A. No.
9189 and amended the same as follows:

SEC. 36. Prohibited Acts. - In addition to the prohibited acts provided by law, it shall be unlawful:

xxxx

36.8. For any person to engage in partisan political activity abroad during the thirty (30)-day
overseas voting period;

xxxx

The provision of existing laws to the contrary notwithstanding, and with due regard to the Principle
of Double Criminality, the prohibited acts described in this section are electoral offenses and shall be
punishable in the Philippines.
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On January 13, 2016, the COMELEC promulgated Resolution No. 10035 entitled "General Instructions for the
Special Board of Election Inspectors and Special Ballot Reception and Custody Group in the Conduct of Manual
Voting and Counting of Votes under Republic Act No. 9189, x x x as amended by Republic Act No. 10590 for
Purposes of the May 9, 2016 National and Local Elections." Section 74(II)(8), Article XVII thereof provides for the
same prohibition above-cited, viz.:

Sec. 74. Election offenses/prohibited acts. -

xxxx

II. Under R.A. 9189 "Overseas Absentee Voting Act of 2003", as amended

xxxx

8. For any person to engage in partisan political activity abroad during the thirty (30)-day overseas
voting period.

xxxx

The provision of existing laws to the contrary notwithstanding, and with due regard to the Principle
of Double Criminality, the prohibited acts described in this section are electoral offenses and shall be
punishable in the Philippines.

xxxx

Petitioner possesses dual citizenship (Filipino and American), whose right to vote under R.A. No. 9189, as
amended, or the absentee voting system, was upheld by the Court En Banc in the 2006 case of Nicolas-Lewis, v.
COMELEC.4

Petitioner alleges, albeit notably sans support, that she, "together with thousands of Filipinos all over the world,"
were prohibited by different Philippine consulates from conducting information campaigns, rallies, and outreach
programs in support of their respective candidates, especially for the positions of President and Vice-President for
the 2016 Elections, pursuant to the above-cited provisions.5

Hence, this petition.

Considering the urgency of the matter as the May 2016 presidential and vice-presidential elections were
forthcoming when the petition was filed, the Court, in its April 19, 2016 Resolution6 partially granted the application
for temporary restraining order (TRO), enjoining the COMELEC, its deputies and other related instrumentalities from
implementing the questioned provisions, except within Philippine Embassies, Consulates, and other Posts where
overseas voters may exercise their right to vote pursuant to the Overseas Voting System, where partisan political
activities shall still be prohibited until further orders from the Court.

Issues

Notably, the questioned provision in COMELEC Resolution No. 10035 merely echoed that of Section 36.8 of
R.A. No. 9189, as amended by R.A. No. 10590. Also, said Resolution was issued for purposes of the May 9, 2016
Elections only, which already came to pass.

Thus, ultimately, this Court is called upon to resolve the issue on whether Section 36.8 of R.A. No. 9189, as
amended by R.A. No. 10590, is unconstitutional for violating the right to speech, expression, assembly, and
suffrage; for denial of substantive due process and equal protection of laws; and for violating the territoriality
principle of our criminal law.

The Court's Ruling

The Court is once again confronted with the task of harmonizing fundamental interests in our constitutional and
democratic society. On one hand are the constitutionally-guaranteed rights, specifically, the rights to free speech,
expression, assembly, suffrage, due process and equal protection of laws, which this Court is mandated to protect.
On the other is the State action or its constitutionally-bounden duty to preserve the sanctity and the integrity of the
electoral process, which the Court is mandated to uphold. It is imperative, thus, to cast a legally-sound and
pragmatic balance between these paramount interests.

Essentially, petitioner urges the Court to review the questioned provision, premised on the claim that "he and all
the Filipino voters all over the world" have experienced its detrimental effect when she, "together with thousands of
similarly situated Filipinos all over the world," were allegedly prohibited by different Philippine consulates from
conducting information campaigns, rallies, and outreach programs in support of their respective candidates in the
2016 Elections.
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The Office of the Solicitor General (OSG), however, argues that these allegations do not only lack veracity, but
also failed to demonstrate how petitioner, or overseas Filipino voters for that matter, were left to sustain or are in the
immediate danger to sustain direct injury as a result of the enforcement of the assailed provision. Significant details
such as the true nature of the activities allegedly conducted by the petitioner and the alleged thousands of overseas
Filipino voters all over the world and the circumstances that led to the alleged prohibition made by the Philippine
consulates, if at all, were not asserted which could have clearly demonstrated the claimed detrimental effect caused
by the operation of the questioned law to her and all the Filipino voters abroad. Hence, the OSG posits that
petitioner failed to establish that this case involves a justiciable controversy to warrant the Court's review of a co-
equal branch's act.

Contrary to the OSG's position, the instant petition involves an actual case or justiciable controversy, warranting
the Court's exercise of the power of judicial review.

Indeed, whether under the traditional or the expanded setting, the power of judicial review is subject to certain
limitations, one of which is that there must be an actual case or controversy calling for the exercise of judicial
power.7 In the recent case of Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City,8 the Court
expounded on this requisite, viz.:

x x x [A]n actual case or controversy is one which ["]involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute.["] In other words, "there must be a contrariety of
legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence." According to recent jurisprudence, in the Court's exercise of its expanded
jurisdiction under the 1987 Constitution, this requirement is simplified "by merely requiring
a prima facie showing of grave abuse of discretion in the assailed governmental act."

Corollary to the requirement of an actual case or controversy is the requirement of ripeness. A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to himself as a result of the challenged action.

Relatedly, in Ifurung v. Morales,9 the Court explained that:

[G]rave abuse of discretion arises when a lower court or tribunal patently violates the Constitution,
the law, or existing jurisprudence. We have already ruled that petitions for certiorari and prohibition
filed before the Court "are the remedies by which grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the [g]overnment may be
determined under the Constitution," and explained that "[w]ith respect to the Court, x x x the
remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ
of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a
tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions,
but also to set right, undo, and restrain any act of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch or instrumentality of the [g]overnment, even if
the latter does not exercise judicial, quasi-judicial or ministerial functions."

Thus, "[w]here an action of the legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right, but in fact the duty of the judiciary to settle the dispute. The question, thus, posed is
judicial rather than political. The duty to adjudicate remains to assure that the supremacy of the Constitution is
upheld."10

Guided by the foregoing principles, the Court finds that there exists an actual justiciable controversy in this case
given the "evident clash of the parties' legal claims"11 as to whether the questioned provision infringe upon the
constitutionally-guaranteed freedom of expression of the petitioner, as well as all the Filipinos overseas. Petitioner's
allegations and arguments presented a prima facie case of grave abuse of discretion which necessarily obliges the
Court to take cognizance of the case and resolve the paramount constitutional issue raised. The case is likewise
ripe for adjudication considering that the questioned provision continues to be in effect until the Court issued the
TRO above-cited, enjoining its implementation. While it may be true that petitioner failed to particularly allege the
details of her claimed direct injury, the petition has clearly and sufficiently alleged the existence of an immediate or
threatened injury sustained and being sustained by her, as well as all the overseas Filipinos, on their exercise of free
speech by the continuing implementation of the challenged provision. A judicial review of the case presented is,
thus, undeniably warranted.

Besides, in Gonzales v. COMELEC,12 the Court ruled that when the basic liberties of free speech, freedom of
assembly and freedom of association are invoked to nullify a statute designed to maintain the purity and integrity of
the electoral process by Congress calling a halt to the undesirable practice of prolonged political campaign or
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partisan political activities, the question confronting the Court is one of transcendental significance, warranting this
Court's exercise of its power of judicial review.13

Verily, in discharging its solemn duty as the final arbiter of constitutional issues, the Court shall not shirk from its
obligation to determine novel issues, or issues of first impression, with far-reaching implications.14

That being so, this Court shall now endeavor to settle the constitutional issue raised in the petition promptly and
definitely.

Petitioner assails the constitutionality of Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590, which
prohibits "any person to engage in partisan political activity abroad during the 30-day overseas voting period." A
violation of this provision entails penal and administrative sanctions.

Section 79(b) of the Omnibus Election Code defines partisan political activity as follows:

Section 79. Definitions. - x x x

xxxx

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of

persons for the purpose of soliciting votes and/or undertaking any campaign for or
against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other

similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign
or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for

or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support

or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a

candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the
chances of aspirants for nomination for candidacy to a public office by a political party,
aggroupment, or coalition of parties shall not be considered as election campaign or
partisan election activity.

Public expressions or opinions or discussions of probable issues in a forthcoming

election or on attributes of or criticisms against probable candidates proposed to be
nominated in a forthcoming political party convention shall not be construed as part of
any election campaign or partisan political activity contemplated under this Article.

Basically, on its face, the questioned provision prohibits the act of campaigning for or against any candidate
during the voting period abroad.

In the main, petitioner argues that the prohibition is a violation of Article III, Section 4 of the 1987 Constitution.
Petitioner explains that the prohibited partisan political activities as defined under the law are acts of exercising free
speech, expression, and assembly. Corollary, these activities are necessary for the voters to be informed of the
character, platforms, and agenda of the candidates to the end of having an educated decision on who to vote for. As
such, it is petitioner's position that the prohibition on partisan political activities is a clear curtailment of the most
cherished and highly-esteemed right to free speech, expression, and assembly, as well as the right to suffrage.

Specifically, petitioner argue that the questioned prohibition constitutes a content-based prior restraint on the
overseas Filipino voters' right to express their political inclinations, views and opinions on the candidates, hence,
must be given the presumption of unconstitutionality and subjected to the strictest scrutiny, i.e., overcoming the clear
and present danger rule.

We resolve.

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and
given a preferred right that stands on a higher level than substantive economic freedom or other liberties.15 In no
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equivocal terms did the fundamental law of the land prohibit the abridgement of the freedom of expression. Section
4, Article II of the 1987 Constitution expressly states:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.

A fundamental part of this cherished freedom is the right to participate in electoral processes, which includes not
only the right to vote, but also the right to express one's preference for a candidate or the right to influence others to
vote or otherwise not vote for a particular candidate. This Court has always recognized that these expressions are
basic and fundamental rights in a democratic polity16 as they are means to assure individual self-­fulfillment, to attain
the truth, to secure participation by the people in social and political decision-making, and to maintain the balance
between stability and change.17

Rightfully so, since time immemorial, "[i]t has been our constant holding that this preferred freedom [of
expression] calls all the more for the utmost respect when what may be curtailed is the dissemination of information
to make more meaningful the equally vital right of suffrage."18 In the recent case of 1-United Transport Koalisyon (1-
UTAK) v. COMELEC,19 the Court En Banc pronounced that any governmental restriction on the right to convince
others to vote for or against a candidate - a protected expression - carries with it a heavy presumption of invalidity.

To be sure, this rather potent deviation from our conventional adherence to the presumption of constitutionality
enjoyed by legislative acts is not without basis. Nothing is more settled than that any law or regulation must not run
counter to the Constitution as it is the basic law to which all laws must conform. Thus, while admittedly, these rights,
no matter how sacrosanct, are not absolute and may be regulated like any other right, in every case where a
limitation is placed on their exercise, the judiciary is called to examine the effects of the challenged governmental
action20 considering that our Constitution emphatically mandates that no law shall be passed abridging free speech
and expression. Simply put, a law or statute regulating or restricting free speech and expression is an outright
departure from the express mandate of the Constitution against the enactment of laws abridging free speech and
expression, warranting, thus, the presumption against its validity.

In this regard, therefore, a law or regulation, even if it purports to advance a legitimate governmental interest,
may not be permitted to run roughshod over the cherished rights of the people enshrined in the Constitution.21 It is
only when the challenged restriction survives the appropriate test will the presumption against its validity be
overthrown.

The question now is what measure of judicial scrutiny should be used to gauge the challenged provision.

Over the years, guided by notable historical circumstances in our nation and related American constitutional law
doctrines on the First Amendment, certain tests of judicial scrutiny were developed to determine the validity or
invalidity of free speech restrictions in our jurisdiction.

Foremost, a facial review of a law or statute encroaching upon the freedom of speech on the ground of
overbreadth or vagueness is acceptable in our jurisdiction. Under the overbreadth doctrine, a proper governmental
purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its
subject broadly, thereby invading the area of protected freedoms.22 Put differently, an overbroad law or statute
needlessly restricts even constitutionally-protected rights. On the other hand, a law or statute suffers from
vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its
meaning and differ as to its application.23

It is noteworthy, however, that facial invalidation of laws is generally disfavored as it results to entirely striking
down the challenged law or statute on the ground that they may be applied to parties not before the Court whose
activities are constitutionally protected. It disregards the case and controversy requirement of the Constitution in
judicial review, and permits decisions to be made without concrete factual settings and in sterile abstract
contexts,24 deviating, thus, from the traditional rules governing constitutional adjudication. Hence, an on-its-face
invalidation of the law has consistently been considered as a "manifestly strong medicine" to be used "sparingly and
only as a last resort."25

The allowance of a review of a law or statute on its face in free speech cases is justified, however, by the aim to
avert the "chilling effect" on protected speech, the exercise of which should not at all times be abridged.26 The Court
elucidated:

The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute drawn with
narrow specificity."27 (Emphasis supplied, citation omitted)

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Restraints on freedom of expression are also evaluated by either or a combination of the following theoretical
tests, to wit: (a) the dangerous tendency doctrine,28 which were used in early Philippine case laws; (b) the clear and
present danger rule,29 which was generally adhered to in more recent cases; and (c) the balancing of interests
test,30 which was also recognized in our jurisprudence.

In the landmark case of Chavez v. Gonzales,31 the Court laid down a more detailed approach in dealing with
free speech regulations. Its approach was premised on the rational consideration that "the determination x x x of
whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances
of each case, including the nature of the restraint." The Court discussed:

Given that deeply ensconced our fundamental law is the hostility against all prior restraints on
speech, and any act that restrains speech is presumed invalid, and "any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted with furrowed brows," it is important to
stress that not all prior restraints on speech are invalid. Certain previous restraints may be permitted by
the Constitution, but determined only upon a careful evaluation of the challenged act as against the
appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of
restraint on the freedom of speech. A distinction has to be made whether the restraint is (1) a
content-neutral regulation, i.e., merely concerned with the incidents of speech, or one that merely
controls the time, place, or manner, and under well[-]defined standards; or (2) a content-based
restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech.
The cast of the restriction determines the test by which the challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity. Because regulations of this type are not
designed to suppress any particular message, they are not subject to the strictest form of
judicial scrutiny but an intermediate approach-somewhere between the mere rationality that is
required of any other law and the compelling interest standard applied to content-based
restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity
of a law but also require that the restrictions be narrowly-tailored to promote an important or significant
governmental interest that is unrelated to the suppression of expression. The intermediate approach
has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the

constitutional power of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incident restriction on alleged
[freedom of speech & expression] is no greater than is essential to the
furtherance of that interest.

On the other hand, a governmental action that restricts freedom of speech or of the press based on
content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the
challenged act has overcome the clear and present danger rule will it pass constitutional muster, with
the government having the burden of overcoming the presumed unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck
down.

With respect to content-based restrictions, the government must also show the type of harm the
speech sought to be restrained would bring about - especially the gravity and the imminence of the
threatened harm - otherwise the prior restraint will be invalid. Prior restraint on speech based on its
content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil
that has taken the life of a reality already on ground." As formulated, "the question in every case is
whether the words used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity and degree."

The regulation which restricts the speech content must also serve an important or substantial
government interest, which is unrelated to the suppression of free expression.

Also, the incidental restriction on speech must be no greater than what is essential to the
furtherance of that interest. A restriction that is so broad that it encompasses more than what is
required to satisfy the governmental interest will be invalidated. The regulation, therefore, must be
reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means
undertaken.

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Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an
intermediate review. A content-based regulation, however, bears a heavy presumption of invalidity and
is measured against the clear and present danger rule. The latter will pass constitutional muster only if
justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague.
(Emphasis supplied, citations omitted)32

The paramount consideration in the analysis of the challenged provision, therefore, is the nature of the restraint
on protected speech, whether it is content-based or otherwise, content-neutral. As explained in Chavez, a content-
based regulation is evaluated using the clear and present danger rule, while courts will subject content-neutral
restraints to intermediate scrutiny.

Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590, is an impermissible content-neutral
regulation for being overbroad, violating, thus, the free speech clause under Section 4, Article III of the 1987
Constitution.

The questioned provision is clearly a restraint on one's exercise of right to campaign or disseminate campaign-
related information. Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination.33 Undoubtedly, the prohibition under the questioned
legislative act restrains speech or expression, in the form of engagement in partisan political activities, before they
are spoken or made.

The restraint, however, partakes of a content - neutral regulation as it merely involves a regulation of the
incidents of the expression, specifically the time and place to exercise the same. It does not, in any manner, affect or
target the actual content of the message. It is not concerned with the words used, the perspective expressed, the
message relayed, or the speaker's views. More specifically, the prohibition does not seek to regulate the exercise of
the right to campaign on the basis of the particular message it conveys. It does not, in any manner, target the actual
content of the message. It is easily understandable that the restriction was not adopted because of the
government's disagreement with the message the subject speech or expression relays.34 There was no intention on
the part of the government to make any distinction based on the speaker's perspectives in the implementation of the
regulation.35 Simply put, regardless of the content of the campaign message or the idea it seeks to convey, whether
it is for or, otherwise against a certain candidate, the prohibition was intended to be applied during the voting period
abroad.

The fact that the questioned regulation applies only to political speech or election-related speech does not, by
itself, make it a content-based regulation. It is too obvious to state that every law or regulation would apply to a
particular type of speech such as commercial speech or political speech. It does not follow, however, that these
regulations affect or target the content of the speech or expression to easily and sweepingly identify it as a content-
based regulation. Instead, the particular law or regulation must be judiciously examined on what it actually intends to
regulate to properly determine whether it amounts to a content-neutral or content-based regulation as contemplated
under our jurisprudential laws. To rule otherwise would result to the absurd interpretation that every law or regulation
relating to a particular speech is a content-based regulation. Such perspective would then unjustifiably disregard the
well-established jurisprudential distinction between content-neutral and content-based regulations.

To be sure, not all regulations against political speech are content-based. Several regulations on this type of
speech had been declared content-neutral by this Court in previous cases. In National Press Club v.
COMELEC,36 the Court ruled that while the questioned provision therein ­ preventing the sale or donation of print
space or airtime for political advertisement during the campaign period - of course, limits the right of speech and
access to mass media, it does not authorize intervention with the content of the political advertisements, which
every candidate is free to present within their respective COMELEC time and space. In the case of 1-UTAK37 above-
cited, the questioned prohibition on posting election campaign materials in public utility vehicles was classified as a
content­-neutral regulation by the Court, albeit declared an invalid one for not passing the intermediate test.

Being a content-neutral regulation, we, therefore, measure the same against the intermediate test, viz.: ( 1) the
regulation is within the constitutional power of the government; (2) it furthers an important or substantial
governmental interest; (3) such governmental interest is unrelated to the suppression of the free expression; and (4)
the incidental restriction on the alleged freedom of expression is no greater than what is essential to the furtherance
of the governmental interest.38

Our point of inquiry focuses on the fourth criterion in the said test, i.e., that the regulation should be no
greater than what is essential to the furtherance of the governmental interest.

The failure to meet the fourth criterion is fatal to the regulation's validity as even if it is within the Constitutional
power of the government agency or instrumentality concerned and it furthers an important or substantial
governmental interest which is unrelated to the suppression of speech, the regulation shall still be invalidated if the
restriction on freedom of expression is greater than what is necessary to achieve the invoked governmental
purpose.39

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In the judicial review of laws or statutes, especially those that impose a restriction on the exercise of protected
expression, it is important that we look not only at the legislative intent or motive in imposing the restriction, but more
so at the effects of such restriction when implemented. The restriction must not be broad and should only be
narrowly-tailored to achieve the purpose. It must be demonstrable. It must allow alternative avenues for the actor to
make speech.40

As stated, the prohibition is aimed at ensuring the conduct of honest and orderly elections to uphold the
credibility of the ballots. Indeed, these are necessary and commendable goals of any democratic society. However,
no matter how noble these aims may be, they cannot be attained by sacrificing the fundamental right of expression
when such aim can be more narrowly pursued by not encroaching on protected speech merely because of the
apprehension that such speech creates the danger of the evils sought to be prevented.41

In this case, the challenged provision's sweeping and absolute prohibition against all forms of expression
considered as partisan political activities without any qualification is more than what is essential to the furtherance of
the contemplated governmental interest. On its face, the challenged law provides for an absolute and substantial
suppression of speech as it leaves no ample alternative means for one to freely exercise his or her fundamental
right to participate in partisan political activities. Consider:

The use of the unqualified term "abroad" would bring any intelligible reader to the conclusion that the
prohibition was intended to also be extraterritorial in application. Generalia verba sunt generaliter
inteligencia.42 General words are understood in a general sense. The basic canon of statutory interpretation is that
the word used in the law must be given its ordinary meaning, unless a contrary intent is manifest from the law
itself.43 Thus, since the Congress did not qualify the word "abroad" to any particular location, it should then be
understood to include any and all location abroad. Regardless, therefore, of whether the exercise of the protected
expression is undertaken within or without our jurisdiction, it is made punishable under the challenged provision
couched in pervasive terms.

To reiterate, the perceived danger sought to be prevented by the restraint is the purported risk of compromising
the integrity and order of our elections. Sensibly, such risk may occur only within premises where voting is
conducted, i.e., in embassies, consulates, and other foreign service establishments. There is, therefore, no rhyme or
reason to impose a limitation on the protected right to participate in partisan political activities exercised beyond said
places.

While it may be argued that the Congress could not be presumed to have enacted a ridiculous rule that
transgresses the elementary principle of territoriality in penalizing offenses, however, the general language of the
law itself contradicts such argument.

For the same reason, we cannot accept the OSG's argument that the prohibition was intended to apply to
candidates only, whose exercise of the right to campaign may be regulated as to time, place, and manner, citing the
case of The Diocese of Bacolod v. COMELEC.44 Again, the overbroad language of the questioned provision, i.e.,
"any person" is prohibited to engage in any partisan political activity within the voting period abroad, betrays such
argument. The general term "any person" should be understood to mean "any person" in its general sense as it was
not clearly intended to be restricted to mean "candidates only."

It may not be amiss to point out, at this juncture, that a facial invalidation of the questioned statute is warranted
to counter the "chilling effect" on protected speech that comes from its overbreadth as any person may simply
restrain himself from speaking or engaging in any partisan political activity anywhere in order to avoid being charged
of an electoral offense. Indeed, an overbroad law that "chills one into silence" should be invalidated on its face.

Neither was there any provision in the Implementing Rules and Regulations (IRR) of the challenged law which
clearly qualifies the application of the questioned prohibition within our jurisdiction and to candidates only.
COMELEC Resolution No. 984345 or the IRR of R.A. No. 9189, as amended, which should have provided for well-
defined and narrowly-tailored standards to guide our executive officials on how to implement the law, as well as to
guide the public on how to comply with it, failed to do so.

Article 63, Rule 15 of the said IRR similarly provides for an all­-encompassing provision, which reads:

RULE 15 CAMPAIGNING ABROAD

ART. 63. Regulation on campaigning abroad. - The use of campaign materials, as well as the
limits on campaign spending shall be governed by the laws and regulations applicable in the
Philippines and subject to the limitations imposed by laws of the host country, if applicable.

Personal campaigning of candidates shall be subject to the laws of the host country.

All forms of campaigning within the thirty (30)[-]day voting period shall be
prohibited. (Emphasis supplied)

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What is more, while Section 64 thereof provides for specific rules on campaigning, it absolutely prohibits
engagement in partisan political activities within our jurisdiction (embassies, consulates, and other foreign service
establishments), not only during the voting period, but even during the campaign period, or simply during the entire
election period, viz.:

ART. 64. Specific rules on campaigning. - The following rules shall apply during the campaign
period, including the day of the election:

1) The "port courtesies" that embassies, consulates and other foreign service establishments may
extend to candidates shall not go beyond welcoming them at the airport and providing them with
briefing materials about the host country, and shall at all times be subject to the availability of the
personnel and funding for these activities.

2) The embassies, consulates and other foreign service establishments shall continue to assist
candidates engaged in official Philippine government activities at the host country and in making the
representations with the host government.

3) Members of the Foreign Service Corps may attend public social/civic/religious affairs where
candidates may also be present, provided that these officers and employees do not take part in the
solicitation of votes and do not express public support for candidates.

4) While nothing in the Overseas Voting Act of 2003 as amended shall be deemed to prohibit free
discussion regarding politics or candidates for public office, members of the Foreign Service Corps
cannot publicly endorse any candidate or political party nor take part in activities involving such public
endorsement.

5) No partisan political activity shall be allowed within the premises of the embassy,
consulate and other foreign service establishment.

6) Government-sponsored or permitted information dissemination activities shall be strictly non-

partisan and cannot be conducted where a candidate is present.

7) A Member of the Foreign Service Corps cannot be asked to directly organize any meeting in
behalf of a party or candidate, or assist in organizing or act as liaison in organizing any such meeting.
The prohibition shall apply to all meetings - social, civic, religious meetings - where a candidate is
present. (Emphases supplied)

By banning partisan political activities or campaigning even during the campaign period within embassies,
consulates, and other foreign service establishments, regardless of whether it applies only to candidates or whether
the prohibition extends to private persons, it goes beyond the objective of maintaining order during the voting period
and ensuring a credible election. To be sure, there can be no legally acceptable justification, whether measured
against the strictest scrutiny or the most lenient review, to absolutely or unqualifiedly disallow one to campaign
within our jurisdiction during the campaign period.

Most certainly, thus, the challenged provision, whether on its face or read with its IRR, constitutes a restriction
on free speech that is greater than what is essential to the furtherance of the governmental interest it aims to
achieve. Section 36.8 of R.A. No. 9189 should be struck down for being overbroad as it does not provide for well-
defined standards, resulting to the ambiguity of its application, which produces a chilling effect on the exercise of
free speech and expression, and ultimately, resulting to the unnecessary invasion of the area of protected
freedoms.46

For the foregoing reasons, this Court declares Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590,
unconstitutional for violating Section 4, Article III of the 1987 Constitution.

To be clear, this Court does not discount the fact that our leaders, chosen to maneuver this nation's political
ventures, are put in position through an electoral process and as such, the government is constitutionally ­mandated
to ensure sound, free, honest, peaceful, and credible elections, the same being indispensable in our democratic
society. In our goal to achieve such peaceful and credible democratic process, however, we cannot likewise
disparage the most exalted freedom of expression, which is undeniably recognized as the bedrock of every
democratic society, it being an "indispensable condition of nearly every other form of freedom."47 After all, the
conduct of elections is premised upon every democratic citizen's right to participate in the conduct of public affairs
and social and political decision-making through the exercise of the freedom of expression. A restraint on such a
vital constitutional right through an overbroad statute cannot, thus, be countenanced and given judicial imprimatur.
As pronounced by the Court in the landmark case of Adiong v. COMELEC:48

When faced with border line situations where freedom to speak by a candidate or party and
freedom to know on the part of the electorate are invoked against actions intended for maintaining

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clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom.
For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not
antagonistic. There can be no free and honest elections if in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed.

WHEREFORE, premises considered, the petition is GRANTED. The Court declares Section 36.8 of Republic
Act No. 9189, as amended by Republic Act No. 10590 as UNCONSTITUTIONAL. The temporary restraining order
issued by this Court on April 19, 2016 is hereby made PERMANENT and its application is accordingly extended
within Philippine Embassies, Consulates, and other posts where overseas voters may exercise their right to vote
pursuant to the Overseas Voting System.

SO ORDERED.

Bersamin, C.J., Carpio, Peralta, A. Reyes, Jr., Gesmundo, Hernando, Carandang, Lazaro-Javier, Inting,
and Zalameda, JJ., concur.

Perlas-Bernabe, J., Please see Concurring Opinion.

Leonen, J., See separate concurring opinion in the result.

Jardeleza, J., See separate concurring.

Caguioa, J., I join the separate concurring opinion.

Footnotes
1
Approved on May 27, 2013.
2
Promulgated on January 13, 2016.
3
Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a
system for absentee voting by qualified Filipinos abroad. x x x.
4
Nicolas-Lewis v. COMELEC, 529 Phil. 642 (2006).
5
Rollo, p. 8.
6
Id. 94-95.
7
Peralta v. Philippine Postal Corporation,G.R. No. 223395, December 4, 2018; Biraogo v. Philippine Truth
Commission of 2010, 651 Phil. 374, 438 (2010).
8
G.R. No. 225442, August 8, 2017, 835 SCRA 350, 385.
9
G.R. No. 232131, April 24, 2018.
10
Id.
11
Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, supra note 8, at 385-386.
12
Gonzales v. COMELEC, 137 Phil. 471 (1969).
13
Estipona, Jr. v. Judge Lobrigo, G.R. No. 226679,August 15, 2017, 837 SCRA 160, 171.
14
Id.
15
Chavez v. Gonzales, 569 Phil. 155, 195 (2008).
16
The Diocese of Bacolod v. COMELEC, 751 Phil. 301, 444 (2015), citing National Press Club v. COMELEC,
283 Phil. 795, 810 (1992).
17
ABS-CBN Broadcasting Corporation v. COMELEC, 380 Phil. 780, 792 (2000).
18
Mutuc v. COMELEC, 146 Phil. 798, 805-806 (1970).
19
758 Phil. 67 (2015).
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