G.R. No. 206020.April 14, 2015.

1-UNITED TRANSPORT KOALISYON (1-UTAK),

petitioner, vs. COMMISSION ON ELECTIONS,
respondent.

Constitutional Law; Administrative Regulations; Statutes; It is

basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must conform; no act
shall be valid if it conflicts with the Constitution.Like any other
administrative regulations, Resolution No. 9615, or any part
thereof, must not run counter to the Constitution. It is basic that if
a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must conform; no act
shall be valid if it conflicts with the Constitution. In this regard, an
administrative 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.
Same; Freedom of Speech and of Expression; Prior Restraint;
Freedom from prior restraint is largely freedom from government
censorship of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive, legislative or
judicial branch of the government.Free speech may be identified
with the liberty to discuss publicly and truthfully any matter of
public concern without prior restraint or censorship and subsequent
punishment. Prior restraint refers to official governmental
restrictions on the press or other forms of expression in advance of
actual publication or dissemination. Freedom from prior restraint is
largely freedom from government censorship of publications,
whatever the form of censorship, and regardless of whether it is
wielded by the executive, legislative or judicial branch of the
government. Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its validity. 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

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* EN BANC.

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 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.
Same; Same; 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.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.
Same; Same; Content-Neutral Regulation; 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, is constitutionally permissible, even if
it restricts the right to free speech.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, 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.
Election Law; Commission on Elections; The constitutional
grant of supervisory and regulatory powers to the Commission on
Elections (COMELEC) over franchises and permits to operate,
though seemingly unrestrained, has its limits.The constitutional
grant of supervisory and regulatory powers to the COMELEC over
franchises and permits to operate, though seemingly unrestrained,
has its limits. Notwithstanding the ostensibly broad supervisory
and regulatory powers granted to the COMELEC during an election
period under Section 4, Article IX-C of the Constitution, the Court
had

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previously set out the limitations thereon. In Adiong v.

COMELEC, 207 SCRA 712 (1992), the Court, while recognizing that
the COMELEC has supervisory power vis--vis the conduct and
manner of elections under Section 4, Article IX-C of the
Constitution, nevertheless held that such 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.
Same; Same; Delegation of Powers; The Commission on
Elections (COMELECs) constitutionally delegated powers of
supervision and regulation do not extend to the ownership per se of
public utility vehicles (PUVs) and transport terminals, but only to
the franchise or permit to operate the same.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 COMELECs
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.
Constitutional Law; Freedom of Speech and of Expression; Prior
Restraint; Regulating the expression of ideas or opinion in a public
utility vehicle (PUV), through the posting of an election campaign
material thereon, is not a regulation of the franchise or permit to
operate, but a regulation on the very ownership of 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

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posting of election campaign materials on the vehicle, does not

affect considerations pertinent to the operation of the PUV. Surely,
posting a decal expressing support for a certain candidate in an
election will not in any manner affect the operation of the PUV as
such. Regulating the expression of ideas or opinion in a PUV,
through the posting of an election campaign material thereon, is not
a regulation of the franchise or permit to operate, but a regulation
on the very ownership of the vehicle.
Same; Same; Same; Commission on Elections; The Commission
on Elections (COMELEC) does not have the constitutional power to
regulate public transport terminals owned by private persons; 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.
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.
Election Law; Common Poster Areas; Section 9 of Republic Act
(RA) No. 9006 authorizes political parties and party-list groups and
independent candidates to erect common poster areas and
candidates to post lawful election campaign materials in private
places, with the consent of the owner thereof, and in public places or
property, which are allocated equitably and impartially.Section 9
of R.A. No. 9006 authorizes political parties and party-list groups
and independent candidates to erect common poster areas and
candidates to post lawful election campaign materials in private
places, with the consent of the owner thereof, and in public places
or property, which are allocated equitably and impartially. Further,
Section 13 of R.A. No.

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7166 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.
Same; Statement of Contributions and Expenditures; Section 14
of Republic Act (RA) 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 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.
Constitutional Law; Freedom of Speech and of Expression;
Captive-Audience Doctrine; 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
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. A regulation based on the
captive-audience doctrine is in the guise of censorship, which
undertakes selectively to shield the public from some kinds of
speech on the ground that they are more offensive than others.
Such selective restrictions have been upheld only when the speaker
intrudes on the privacy of the home or the degree of captivity makes
it either impossible or impractical for the unwilling viewer or
auditor to avoid exposure.
Same; Same; Same; A government regulation based on the
captive

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-audience doctrine may not be justified if the supposed captive

audience may avoid exposure to the otherwise intrusive speech.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.
Same; Equal Protection of the Law; The Constitution does not
require that things, which are different in fact, be treated in law as
though they were the same. The equal protection clause does not
forbid discrimination as to things that are different.The equal
protection clause is aimed at all official state actions, not just those
of the legislature. Its inhibitions cover all the departments of the
government including the political and executive departments, and
extend to all actions of a state denying equal protection of the laws,
through whatever agency or whatever guise is taken. Nevertheless,
the guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws to all citizens of the state.
Equality of operation of statutes does not mean their indiscriminate
operation on persons merely as such, but on persons according to
the circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things,
which are different in fact, be treated in law as though they were
the same. The equal protection clause does not forbid discrimination
as to things that are different. 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.
Same; Freedom of Speech and of Expression; It bears stressing
that the freedom to advertise ones political candidacy is clearly a
significant part of our freedom of expression.It bears stressing
that the freedom to advertise ones political candidacy is clearly a
signifi

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cant part of our freedom of expression. A restriction on this

freedom without rhyme or reason is a violation of the most valuable
feature of the democratic way of life.

SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari.
The facts are stated in the opinion of the Court.
Donald V. Diaz and Geomelyn Sarah D. Sacramento for
petitioner.
The Solicitor General for respondent.

REYES,J.:

The right to participate in electoral processes is a basic

and fundamental right in any democracy. It includes not
only the right to vote, but also the right to urge others to
vote for a particular candidate. The right to express ones
preference for a candidate is likewise part of the
fundamental right to free speech. Thus, any governmental
restriction on the right to convince others to vote for a
candidate carries with it a heavy presumption of invalidity.
This is a petition for certiorari1 under Rule 64 and Rule
65 of the Rules of Court filed by 1-United Transport
Koalisyon (petitioner), a party-list organization, assailing
Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 96152 of the Commission on Elections
(COMELEC).

The Facts

On February 12, 2001, Republic Act (R.A.) No. 9006,

otherwise known as the Fair Elections Act, was passed.
Section 9 thereof provides:

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1 Rollo, pp. 3-31.

2 Id., at pp. 31-59.

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 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 January 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:
xxxx
(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:
xxxx
5.Public utility vehicles such as buses, jeepneys, trains, taxi
cabs, ferries, pedicabs and tricycles, whether motorized or not;

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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 Republic
Act No. 9006 as implemented by Section 18(n) of these Rules.3

In its letter4 dated January 30, 2013, the petitioner,

through its president, Melencio F. Vargas, sought
clarification from the COMELEC as regards the application
of Resolution No. 9615, particularly Section 7(g) items (5)
and (6), in relation to Section 7(f), vis--vis privately-owned
public utility vehicles (PUVs) and transport terminals. The
petitioner 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
petitioner 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.
On February 5, 2013, the COMELEC En Banc issued
Minute Resolution No. 13-0214,5 which denied the
petitioners request to reconsider the implementation of
Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615. The COMELEC En Banc, adopting
the recommendation of Commissioner Christian Robert S.
Lim, opined that:

From the foregoing, x x x the primary fact in consideration here

is actually whether 1-UTAK or any other [PUV] owners in the same
position do in fact possess a

_______________

3 Id., at pp. 37-39.

4 Id., at pp. 95-99.
5 Id., at pp. 103-105.

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franchise and/or certificate of public convenience and

operate as a public utility. If it does not, then the ruling in
Adiong applies squarely. If it does, then its operations, pursuant to
Section 4, Article IX-C of the Constitution, will be placed directly
under the supervision and regulation of the Commission for the
duration of the election period so as to ensure equality of
opportunity, time, and space for all candidates in the placement of
political advertisements. Having placed their property for use by
the general public and having secured a license or permit to do so,
1-UTAK and other PUV owners, as well as transport terminal
owners, cannot now complain that their property is subject to
regulation by the State. Securing a franchise or a certificate of
public convenience in their favor does not exempt them from the
burdens imposed by the Constitution, Republic Act No. 9006 x x x,
and other related statutes. It must be stressed that the Constitution
itself, under Section 6, Article XII, commands that the use of
property bears a social function and all economic agents
shall contribute to the common good; and there is no higher
common good than that as espoused in R.A. No. 9006 the
equalization of opportunities for all candidates for political office
during elections a policy which Res. No. 9615 merely
implements.
 As required in Adiong, and in compliance with the OBrien
standards, the prohibition furthers two important and substantial
governmental interests equalizing opportunity, time, and space
for all candidates, and putting to a stop excessive campaign
spending. The regulation bears a clear and reasonable nexus with
these Constitutionally- and statutorily-sanctioned objectives, and
the infringement of freedom is merely incidental and limited as to
time. The Commission has not taken away all avenues of expression
available to PUV and transport terminal owners. They may express
their political preferences elsewhere.
The exact purpose for placing political advertisements on a PUV
or in transport terminals is exactly because it is public and can
be seen by all; and al

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though it is true that private vehicles ply the same route as

public vehicles, the exposure of a [PUV] servicing the general,
riding public is much more compared to private vehicles.
Categorizing PUVs and transport terminals as public places
under Section 7(f) of Reso. No. 9615 is therefore logical. The
same reasoning for limiting political advertisements in print media,
in radio, and in television therefore holds true for political
advertisements in PUVs and transport terminals.6

Hence, the instant petition.

Arguments of the Petitioner

The petitioner maintains that 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; that the prohibition curtails their
ideas of who should be voted by the public. The petitioner
also claims that 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. Further, the petitioner posits
that 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.
Further, assuming that substantial public interest exists
in the said prohibition imposed under Resolution No. 9615,
the petitioner claims that 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.

_______________
 6 Id., at pp. 104-105.

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Arguments of COMELEC

On the other hand, the COMELEC posits that privately-

owned PUVs and transport terminals are public spaces
that are subject to its regulation. It explains that 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.
The COMELEC points out that 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, the COMELEC avers,
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.
The COMELEC further claims that Resolution No. 9615
is a valid content-neutral regulation and, thus, does not
impinge on the constitutional right to freedom of speech. It
avers that the assailed regulation is within the
constitutional power of the COMELEC pursuant to Section
4, Article IX-C of the Constitution. The COMELEC alleges
that 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.

The Issue

The petitioner presents the following issues for the

Courts resolution:

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I.[WHETHER] RESOLUTION NO. 9615 VIOLATES THE

RIGHT TO FREE SPEECH OF THE OWNERS OF [PUVs] AND
TRANSPORT TERMINALS.
II.[WHETHER] RESOLUTION NO. 9615 IS VOID AS A
RESTRAINT TO FREE SPEECH AND EXPRESSION FOR
FAILURE TO SATISFY THE OBRIEN TEST.
III.[WHETHER] THE CONSTITUTIONAL OBJECTIVE TO
GIVE AN EQUAL OPPORTUNITY TO INFORM THE
ELECTORATE IS NOT IMPAIRED BY POSTING POLITICAL
ADVERTISEMENTS ON PUVs AND TRANSPORT TERMINALS.
IV.[WHETHER] THE OWNERSHIP OF FACILITIES IS
DIFFERENT AND INDEPENDENT FROM THE FRANCHISE OR
OPERATION OF THE PUBLIC UTILITY, THE FORMER BEING
BEYOND THE POWER OF REGULATION BY THE COMELEC.7

In sum, the issue presented for the Courts resolution is

whether Section 7(g) items (5) and (6), in relation to Section
7(f), of Resolution No. 9615, which prohibits the posting of
any election campaign or propaganda material, inter alia,
in PUVs and public transport terminals are valid
regulations.

Ruling of the Court

The petition is meritorious.

Resolution No. 9615, which was promulgated pursuant
to Section 4, Article IX-C of the Constitution and the
provisions of R.A. No. 9006, lays down the administrative
rules relative to the COMELECs exercise of its supervisory
and regulatory powers over all franchises and permits for
the operation of transportation and other public utilities,
media of communication or information, and all grants,
special privileges, or concessions granted by the
Government.

_______________

7 Id., at pp. 11-12.

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Like any other administrative regulations, Resolution

No. 9615, or any part thereof, must not run counter to the
Constitution. It is basic that if a law or an administrative
rule violates any norm of the Constitution, that issuance is
null and void and has no effect. The Constitution is the
basic law to which all laws must conform; no act shall be
valid if it conflicts with the Constitution.8 In this regard, an
administrative 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.

Section 7(g) items (5) and (6),

in relation to Section 7(f), of
Resolution No. 9615 are prior
restraints on speech.

Free speech may be identified with the liberty to discuss

publicly and truthfully any matter of public concern
without prior restraint or censorship and subsequent
punishment.9 Prior restraint refers to official governmental
restrictions on the press or other forms of expression in
advance of actual publication or dissemination. Freedom
from prior restraint is largely freedom from government
censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the
executive, legislative or judicial branch of the
government.10 Any system of prior restraints of expression
comes to this Court bearing a heavy presumption against
its validity.11

_______________

8 Social Justice Society (SJS) v. Dangerous Drugs Board, 591 Phil.

393, 405; 570 SCRA 410, 422-423 (2008).
9 Reyes v. Bagatsing, 210 Phil. 457, 465-466; 125 SCRA 553, 560
(1983).
10 Chavez v. Gonzalez, 569 Phil. 155, 203; 545 SCRA 441, 491 (2008).
11 See Bantam Books v. Sullivan, 372 U.S. 58 (1963).

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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.12 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.13

_______________
 12 J. Puno, Concurring Opinion, Social Weather Stations, Inc. v.
COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496, 512.
13 Mutuc v. COMELEC, 146 Phil. 798, 805-806; 36 SCRA 228, 236
(1970).

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Thus, in Adiong v. COMELEC,14 the Court struck down

the COMELECs prohibition against the posting of decals
and stickers on mobile places. The Court ratiocinated
that:

Significantly, the freedom of expression curtailed by the

questioned prohibition is not so much that of the candidate or the
political party. The regulation strikes at the freedom of an
individual to express his preference and, by displaying it on
his car, to convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner agrees to have it
placed on his private vehicle, the expression becomes a statement
by the owner, primarily his own and not of anybody else. If, in the
National Press Club case, the Court was careful to rule out
restrictions on reporting by newspaper or radio and television
stations and commentators or columnists as long as these are not
correctly paid for advertisements or purchased opinions with less
reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an
individual person who pastes a sticker or decal on his
private property.15 (Emphases ours)

The assailed prohibition on posting

election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.

The COMELEC claims that while Section 7(g) items (5)

and (6) of Resolution No. 9615 may incidentally restrict the
right to free speech of owners of PUVs and transport
terminals, the same is nevertheless constitutionally
permissible since it is a valid content-neutral regulation.
The Court does not agree.

_______________

14 G.R. No. 103956, March 31, 1992, 207 SCRA 712.

15 Id., at p. 719.

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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.17
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.

_______________

16 Supra note 10 at p. 204; p. 493.

17 Supra note 12 at p. 504, citing United States v. OBrien, 391 U.S.
367, 377.

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The COMELEC may only regulate

the franchise or permit to operate
and not the ownership per se of
PUVs and transport terminals.

The prohibition under Section 7(g) items (5) and (6), in

relation to Section 7(f), of Resolution No. 9615 is not within
the COMELECs 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. Section 4, Article IX-C of the Constitution, thus
provides:

Section4.The Commission may, during the election period,

supervise or regulate the enjoyment or utilization of all franchises
or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
government-owned or -controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.

Nevertheless, the constitutional grant of supervisory

and regulatory powers to the COMELEC over franchises
and permits to operate, though seemingly unrestrained,
has its limits. Notwithstanding the ostensibly broad
supervisory and regulatory powers granted to the
COMELEC during an election period under Section 4,
Article IX-C of the Constitution, the Court had previously
set out the limitations thereon. In Adiong, the Court, while
recognizing that the COMELEC has supervisory power vis-
-vis the conduct and manner of elections under Section 4,
Article IX-C of the Constitution, never-

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theless held that such 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,18 while the Court
upheld the constitutionality of a prohibition on the selling
or giving free of charge, except to the COMELEC, of
advertising space and commercial time during an election
period, 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,19
the Court, notwithstanding the grant of supervisory and
regulatory powers to the COMELEC under Section 4,
Article IX-C of the Constitution, 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.20
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 COMELECs 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.

_______________

18 G.R. No. 102653, March 5, 1992, 207 SCRA 1.

19 Supra note 12.
20 Id., at p. 505.

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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. Thus, in Tatad v. Garcia, Jr.,21 the Court
explained that:

What private respondent owns are the rail tracks, rolling stocks
like the coaches, rail stations, terminals and the power plant, not a
public utility. While a franchise is needed to operate these facilities
to serve the public, they do not by themselves constitute a public
utility. What constitutes a public utility is not their ownership but
their use to serve the public x x x.
The Constitution, in no uncertain terms, requires a franchise for
the operation of a public utility. However, it does not require a
franchise before one can own the facilities needed to operate a
public utility so long as it does not operate them to serve the public.
xxxx
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.
xxxx
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 devotion of property to serve the public may
be done by the owner or by the person in control thereof who may
not necessarily be the owner thereof.
This dichotomy between the operation of a public utility and the
ownership of the facilities used to serve the public can be very well
appreciated when we consider the transportation industry.
Enfranchised airline and

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21 313 Phil. 296; 243 SCRA 436 (1995).

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shipping companies may lease their aircraft and vessels instead

of owning them themselves.22 (Emphases ours)

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.23 Thus, the owner of
a thing has the right to enjoy and dispose of a thing,
without other limitations than those established by law.24
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. Otherwise stated,
a restriction on the franchise or permit to operate
transportation utilities is necessarily a limitation on
ownership, but a limitation on the rights of ownership over
the PUV is not necessarily a regulation on the franchise or
permit to operate the same.
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.25 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 regu-

_______________

22 Id., at pp. 321-323; pp. 452-453.

23 Tolentino, Commentaries and Jurisprudence on the Civil Code of
the Philippines, Vol. II, p. 45, 1992 ed.
24 Civil Code of the Philippines, Article 428.
25 1987 Constitution, Article XII, Section 11.

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lation 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. Surely, posting a decal expressing
support for a certain candidate in an election will not in
any manner affect the operation of the PUV as such.
Regulating the expression of ideas or opinion in a PUV,
through the posting of an election campaign material
thereon, is not a regulation of the franchise or permit to
operate, but a regulation on the very ownership of the
vehicle.
The dichotomy between the regulation of the franchise
or permit to operate of a PUV and that of the very
ownership thereof is better exemplified in the case of
commercial advertisements posted on the vehicle. A
prohibition on the posting of commercial advertisements on
a PUV is considered a regulation on the ownership of the
vehicle per se; the restriction on the enjoyment of the
ownership of the vehicle does not have any relation to its
operation as a PUV.
On the other hand, prohibitions on the posting of
commercial advertisements on windows of buses, because it
hinders police authorities from seeing whether the
passengers inside are safe, is a regulation on the franchise
or permit to operate. It has a direct relation to the
operation of the vehicle as a PUV, i.e., the safety of the
passengers.
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 simi-

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larly 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.
Accordingly, Section 7(g) items (5) and (6) of Resolution
No. 9615 are not within the constitutionally delegated
power of the COMELEC to supervise or regulate the
franchise or permit to operate of transportation utilities.
The posting of election campaign material on vehicles used
for public transport or on transport terminals is not only a
form of political expression, but also an act of ownership
it has nothing to do with the franchise or permit to operate
the PUV or transport terminal.

The rulings in National Press

Club and Osmea v. COMELEC26
find no application to this case.

The COMELEC pointed out that the issue presented in

the instant case is akin to the Courts rulings in National
Press Club and Osmea. It explained that in both cases, the
Court sustained Section 11(b) of R.A. No. 6646 or the
Electoral Reforms Law of 1997, which prohibits
newspapers, radio broadcasting or TV stations, and other
mass media from selling or giving print space or airtime for
campaign or other political purposes, except to the
COMELEC, during the election campaign. The COMELEC
averred that if the legislature can empower it to impose an
advertising ban on mass media, it could likewise empower
it to impose a similar ban on PUVs and transport
terminals.
The Court does not agree.

_______________

26 351 Phil. 692; 288 SCRA 447 (1998).

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The restriction imposed under Section 11(b) of R.A. No.

6646 has a direct relation to the enjoyment and utilization
of the franchise or permit to operate of newspapers, radio
broadcasting and TV stations, and other mass media,
which the COMELEC has the power to regulate pursuant
to Section 4, Article IX-C of the Constitution. The print
space or airtime is an integral part of the franchise or
permit to operate of mass media utilities. Thus, the
restriction under Section 11(b) of R.A. No. 6646 is within
the confines of the constitutionally delegated power of the
COMELEC under Section 4, Article IX-C of the
Constitution.
On the other hand, the prohibition on the posting of
election campaign materials under Section 7(g) items (5)
and (6) of Resolution No. 9615, as already explained, does
not have any relation to the franchise or permit of PUVs
and transport terminals to operate as such and, hence, is
beyond the power of the COMELEC under Section 4,
Article IX-C of the Constitution.

The restriction on free speech of

owners of PUVs and transport termi-
nals is not necessary to further the
stated governmental interest.

Section 7(g) items (5) and (6) of Resolution No. 9615

likewise failed to satisfy the fourth requisite of a valid
content-neutral regulation, i.e., the incidental restriction on
freedom of expression is no greater than is essential to the
furtherance of that interest. 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. While ensuring equality of time,
space, and opportunity to candidates is an important and
substantial governmental interest and is essential to the
conduct of an orderly election, this lofty aim may be
achieved sans any intrusion on the fundamental right of
expression.
First, while Resolution No. 9615 was promulgated by the
COMELEC to implement the provisions of R.A. No. 9006,
the

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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, viz.:

Section6.Equal Access to Media Time and Space.All

registered parties and bona fide candidates shall have equal access
to media time and space. The following guidelines may be amplified
on by the COMELEC:
6.1Print advertisements shall not exceed one-fourth (1/4) page
in broadsheet and one-half (1/2) page in tabloids thrice a week per
newspaper, magazine or other publications, during the campaign
period.
6.2a.Each bona fide candidate or registered political party
for a nationally elective office shall be entitled to not more than one
hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by
purchase or donation.
b.Each bona fide candidate or registered political party for a
locally elective office shall be entitled to not more than sixty (60)
minutes of television advertisement and ninety (90) minutes of
radio advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast
station or entity to submit to the COMELEC a copy of its broadcast
logs and certificates of performance for the review and verification
of the frequency, date, time and duration of advertisements
broadcast for any candidate or political party.
6.3All mass media entities shall furnish the COMELEC with a
copy of all contracts for advertising, promoting or opposing any
political party or the candidacy of any person for public office within
five (5) days af-

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ter its signing. In every case, it shall be signed by the donor, the
candidate concerned or by the duly authorized representative of the
political party.
6.4No franchise or permit to operate a radio or television
station shall be granted or issued, suspended or cancelled during
the election period. In all instances, the COMELEC shall supervise
the use and employment of press, radio and television facilities
insofar as the placement of political advertisements is concerned to
ensure that candidates are given equal opportunities under equal
circumstances to make known their qualifications and their stand
on public issues within the limits set forth in the Omnibus Election
Code and Republic Act No. 7l66 on election spending.
The COMELEC shall ensure that radio or television or cable
television broadcasting entities shall not allow the scheduling of
any program or permit any sponsor to manifestly favor or oppose
any candidate or political party by unduly or repeatedly referring to
or including said candidate and/or political party in such program
respecting, however, in all instances the right of said broadcast
entities to air accounts of significant news or news worthy events
and views on matters of public interest.
6.5All members of media, television, radio or print, shall
scrupulously report and interpret the news, taking care not to
suppress essential facts nor to distort the truth by omission or
improper emphasis. They shall recognize the duty to air the other
side and the duty to correct substantive errors promptly.
6.6Any mass media columnist, commentator, announcer,
reporter, on-air correspondent or personality who is a candidate for
any elective public office or is a campaign volunteer for or employed
or retained in any capacity by any candidate or political

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party shall be deemed resigned, if so required by their employer,

or shall take a leave of absence from his/her work as such during
the campaign period: Provided, That any media practitioner who is
an official of a political party or a member of the campaign staff of a
candidate or political party shall not use his/her time or space to
favor any candidate or political party.
6.7No movie, cinematograph or documentary portraying the
life or biography of a candidate shall be publicly exhibited in a
theater, television station or any public forum during the campaign
period.
6.8No movie, cinematograph or documentary portrayed by an
actor or media personality who is himself a candidate shall likewise
be publicly exhibited in a theater or any public forum during the
campaign period.

Section 9 of R.A. No. 9006 authorizes political parties

and party-list groups and independent candidates to erect
common poster areas and candidates to post lawful election
campaign materials in private places, with the consent of
the owner thereof, and in public places or property, which
are allocated equitably and impartially.
Further, Section 1327 of R.A. No. 716628 provides for the
authorized expenses of registered political parties and
candi-

_______________

27 Section13.Authorized Expenses of Candidates and Political

Parties.The agreement amount that a candidate or registered political
party may spend for election campaign shall be as follows:
For candidates. Ten pesos (P10.00) for President and Vice
President; and for other candidates Three Pesos (P3.00) for every voter
currently registered in the constituency where he filed his certificate of
candidacy: Provided, That a candidate without any political party and
without support from any political party may be allowed to spend Five
Pesos (P5.00) for every such voter; and
For political parties. Five pesos (P5.00) for every voter currently
registered in the constituency or constituencies where it has official
candidates.
Any provision of law to the contrary notwithstanding any contribution
in cash or in kind to any candidate or political party or coalition of
parties for campaign purposes, duly reported to the Commission shall not
be subject to the payment of any gift tax.
28 An Act Providing for Synchronized National and Local Elections
and Electoral Reforms, Authorizing Appropriations Therefor, and for
Other Purposes.

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dates 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

_______________

29 Section14.Statement of Contributions and Expenditures; Effect

of Failure to File Statement.Every candidate and treasurer of the
political party shall, within thirty (30) days after the day of the election,
file in duplicate with the offices of the Commission the full, true and
itemized statement of all contributions and expenditures in connection
with the election.
 No person elected to any public offices shall enter upon the duties of
his office until he has filed the statement of contributions and
expenditures herein required.
The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement required
herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file the
statements or reports in connection with electoral contributions and
expenditures are required herein shall constitute an administrative
offense for which the offenders shall be liable to pay an administrative
fine ranging from One thousand pesos (P1,000.00) to Thirty thousand
pesos (P30,000.00), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of notice of
such failure; otherwise, it shall be enforceable by a writ of execution
issued by the Commission against the properties of the offender.
It shall be the duty of every city or municipal election registrar to
advise in writing, by personal delivery or registered mail, within five (5)
days from the date of election all candidates residing in his jurisdiction to
comply with their obligation to file their statements of contributions and
expenditures.
For the commission of a second or subsequent offense under this
section, the administrative fine shall be from Two thousand pesos
(P2,000.00) to Sixty thousand pesos (P60,000.00), in the discretion of the
Commission. In addition, the offender shall be subject to perpetual
disqualification to hold public office.

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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.

Section 7(g) items (5) and (6)

of Resolution No. 9615 are not
justified under the captive-
audience doctrine.

The COMELEC further points out that PUVs and

transport terminals hold a captive audience
commuters who have no choice but be subjected to the
blare of political propaganda. The COMELEC further
claims that while owners of privately owned PUVs and
transport terminals have a right to express their views to
those who wish to listen, they have no right to force their
message upon an audience incapable of declining to receive
it.
The COMELECs claim is untenable.
 The captive-audience doctrine states that when a
listener cannot, as a practical matter, escape from intrusive
speech, the speech can be restricted.30 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.31

_______________

30 Blacks Law Dictionary, 8th edition, p. 224.

31 See Pro-Choice Network v. Project Rescue, 799 F. Supp. 1417
(W.D.N.Y. 1992).

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A regulation based on the captive-audience doctrine is in

the guise of censorship, which undertakes selectively to
shield the public from some kinds of speech on the ground
that they are more offensive than others. Such selective
restrictions have been upheld only when the speaker
intrudes on the privacy of the home or the degree of
captivity makes it either impossible or impractical for the
unwilling viewer or auditor to avoid exposure.32
In Consolidated Edison Co. v. Public Service
Commission,33 the Supreme Court of the United States of
America (U.S. Supreme Court) struck down the order of
New York Public Service Commission, which prohibits
public utility companies from including inserts in monthly
bills discussing controversial issues of public policy. The
U.S. Supreme Court held that [t]he prohibition cannot be
justified as being necessary to avoid forcing appellants
views on a captive audience, since customers may escape
exposure to objectionable material simply by throwing the
bill insert into a wastebasket.34
Similarly, in Erznoznik v. City of Jacksonville,35 the U.S.
Supreme Court nullified a city ordinance, which made it a
public nuisance and a punishable offense for a drive-in
movie theater to exhibit films containing nudity, when the
screen is visible from a public street or place. The U.S.
Supreme Court opined that the degree of captivity is not so
great as to make it impracticable for an unwilling viewer to
avoid exposure, thus:

The Jacksonville ordinance discriminates among movies solely

on the basis of content. Its effect is to deter drive-in theaters from
showing movies containing any nudity, however innocent or even
educational. This discrimination cannot be justified as a means of
preventing

_______________

32 See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975).

33 447 U.S. 530 (1980).
34 Id., at pp. 530-531.
35 Erznoznik v. City of Jacksonville, supra.
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significant intrusions on privacy. The ordinance seeks only to

keep these films from being seen from public streets and places
where the offended viewer readily can avert his eyes. In short, the
screen of a drive-in theater is not so obtrusive as to make it
impossible for an unwilling individual to avoid exposure to
it. x x x Thus, we conclude that the limited privacy interest of
persons on the public streets cannot justify this censorship of
otherwise protected speech on the basis of its content.36 (Emphasis
ours)

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.
The COMELEC, in insisting that it has the right to
restrict the posting of election campaign materials on PUVs
and transport terminals, cites Lehman v. City of Shaker
Heights,37 a case decided by the U.S. Supreme Court. In
Lehman, a policy of the city government, which prohibits
political advertisements on government-run buses, was
upheld by the U.S. Supreme Court. The U.S. Supreme
Court held that the advertising space on the buses was not
a public forum, pointing out that advertisement space on
government-run buses, although incidental to the
provision of public transportation, is a part of commercial
venture.38 In the same way that other commercial
ventures need not accept every proffer of advertis-

_______________

36 Id., at p. 212.
37 418 U.S. 298 (1974).
38 Id., at p. 303.

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ing from the general public, the citys transit system has
the discretion on the type of advertising that may be
displayed on its vehicles.
Concurring in the judgment, Justice Douglas opined
that while Lehman, a candidate for state office who sought
to avail himself of advertising space on government-run
buses, clearly has a right to express his views to those who
wish to listen, he has no right to force his message upon an
audience incapable of declining to receive it.39 Justice
Douglas concluded: the right of the commuters to be free
from forced intrusions on their privacy precludes the city
from transforming its vehicles of public transportation into
forums for the dissemination of ideas upon this captive
audience.40
The COMELECs reliance on Lehman is utterly
misplaced.
In Lehman, the political advertisement was intended for
PUVs owned by the city government; the city government,
as owner of the buses, had the right to decide which type of
advertisements would be placed on its buses. The U.S.
Supreme Court gave primacy to the city governments
exercise of its managerial decision, viz.:

Revenue earned from long-term commercial advertising could be

jeopardized by a requirement that short-term candidacy or issue-
oriented advertisements be displayed on car cards. Users would be
subjected to the blare of political propaganda. There could be
lurking doubts about favoritism, and sticky administrative
problems might arise in parceling out limited space to eager
politicians. In these circumstances, the managerial decision
to limit car card space to innocuous and less controversial
commercial and service-oriented advertising does not rise to
the dignity of First Amendment violation. Were we to hold to
the contrary, display cases in public hospitals, libraries, office
buildings, military

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39 Id., at p. 307.
40 Id.

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compounds, and other public facilities immediately would

become Hyde Parks open to every would be pamphleteer and
politician. This the Constitution does not require.41 (Emphasis ours)

Lehman actually upholds the freedom of the owner of

the utility vehicles, i.e., the city government, in choosing
the types of advertisements that would be placed on its
properties. In stark contrast, Section 7(g) items (5) and (6)
of Resolution No. 9615 curtail the choice of the owners of
PUVs and transport terminals on the advertisements that
may be posted on their properties.
Also, the city government in Lehman had the right, nay
the duty, to refuse political advertisements on their buses.
Considering that what were involved were facilities owned
by the city government, impartiality, or the appearance
thereof, was a necessity. In the instant case, the ownership
of PUVs and transport terminals remains private; there
exists no valid reason to suppress their political views by
proscribing the posting of election campaign materials on
their properties.

Prohibiting owners of PUVs and

transport terminals from posting
election campaign materials vio-
lates the equal protection clause.

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. One of the basic principles on
which this government was founded is that of the equality
of right, which is embodied in Section 1, Article III of the
1987 Constitution.42 Equal protection requires that all
persons or things similarly situated should be treated
alike, both as to rights conferred

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41 Id., at p. 304.
42 Philippine Judges Association v. Prado, G.R. No. 105371,
November 11, 1993, 227 SCRA 703, 711.

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474 SUPREME COURT REPORTS ANNOTATED

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and responsibilities imposed. Similar subjects, in other

words, should not be treated differently, so as to give undue
favor to some and unjustly discriminate against others.43
The equal protection clause is aimed at all official state
actions, not just those of the legislature. Its inhibitions
cover all the departments of the government including the
political and executive departments, and extend to all
actions of a state denying equal protection of the laws,
through whatever agency or whatever guise is taken.44
Nevertheless, the guaranty of equal protection of the
laws is not a guaranty of equality in the application of the
laws to all citizens of the state. Equality of operation of
statutes does not mean their indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality,
not identity of rights. The Constitution does not require
that things, which are different in fact, be treated in law as
though they were the same. The equal protection clause
does not forbid discrimination as to things that are
different.45
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.46

_______________

43 City of Manila v. Laguio, Jr., 495 Phil. 289, 326; 455 SCRA 308,
347 (2005).
44 Biraogo v. The Philippine Truth Commission of 2010, 651 Phil.
374, 459; 637 SCRA 78, 167-168 (2010).
45 See Central Bank Employees Association, Inc. v. Bangko Sentral ng
Pilipinas, G.R. No. 148208, December 15, 2004, 446 SCRA 299.
46 Quinto v. COMELEC, 621 Phil. 236, 273; 606 SCRA 258, 291
(2009).

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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, as pointed out earlier, 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. As already
explained, 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.47
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

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47 Cruz, Constitutional Law, 2003 ed., p. 128.

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476 SUPREME COURT REPORTS ANNOTATED

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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 governments interest in
ensuring equal time, space, and opportunity for candidates
in elections was not established by the COMELEC.
In sum, Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615 violate the free speech
clause; they are content-neutral regulations, which are not
within the constitutional power of the COMELEC issue
and are not necessary to further the objective of ensuring
equal time, space and opportunity to the candidates. They
are not only repugnant to the free speech clause, but are
also violative of the equal protection clause, as there is no
substantial distinction between owners of PUVs and
transport terminals and owners of private vehicles and
other properties.
On a final note, it bears stressing that the freedom to
advertise ones political candidacy is clearly a significant
part of our freedom of expression. A restriction on this
freedom without rhyme or reason is a violation of the most
valuable feature of the democratic way of life.48
WHEREFORE, in light of the foregoing disquisitions,
the instant petition is hereby GRANTED. Section 7(g)
items (5)

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48 J. Paras, Dissenting Opinion, National Press Club v. COMELEC,

supra note 18 at p. 43.

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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.
SO ORDERED.

Sereno (CJ.), Carpio, Brion, Peralta, Bersamin, Del

Castillo, Perez, Mendoza, Perlas-Bernabe and Leonen, JJ.,
concur.
Velasco, Jr., J., No part.
Leonardo-De Castro, J., On Official Leave.
Villarama, Jr., J., On Official Leave.
Jardeleza, J., No part.

Petition granted.

Notes.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, and 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. (Chavez vs.
Gonzales, 545 SCRA 441 [2008])
Equal protection of the law is a guarantee that persons
under like circumstances and falling within the same class
are treated alike, in terms of privileges conferred and
liabilities enforced. (Sameer Overseas Placement Agency,
Inc. vs. Cabiles, 732 SCRA 22 [2014])
o0o

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