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

_______________

*  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-à-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’
(COMELEC’s) 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
COMELEC’s constitutionally delegated powers of supervision and
regulation do not extend to the ownership per se of PUVs and transport
terminals, but only to the franchise or permit to operate the same. There is a
marked difference between the franchise or permit to operate transportation
for the use of the public and the ownership per se of the vehicles used for
public transport.
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 one’s political candidacy is clearly a significant part of
our freedom of expression.—It bears stressing that the freedom to advertise
one’s 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 one’s 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:

_______________

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:
x x x x
(f) To post, display or exhibit any election campaign or propaganda
material outside of authorized common poster areas, in public places, or in
private properties without the consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include
any of the following:
x x x x
  5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs,
ferries, pedicabs and tricycles, whether motorized or not;

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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-à-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 petitioner’s request to
reconsider the implementation of Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 9615. 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 O’Brien 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 Court’s
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 O’BRIEN 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 Court’s 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
COMELEC’s 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

COMELEC’s 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.

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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. O’Brien, 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
COMELEC’s constitutionally delegated power of supervision or
regulation. It is not disputed that the COMELEC has the power to
supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation utilities during an election
period. Section 4, Article IX-C of the Constitution, thus provides:

Section 4. 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-à-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 COMELEC’s constitutionally delegated powers
of supervision and regulation do not extend to the ownership per se
of PUVs and transport terminals, but only to the franchise or permit
to operate the same.

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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.
x x x x
In law, there is a clear distinction between the “operation” of a
public utility and the ownership of the facilities and equipment used to
serve the public.
x x x x
The right to operate a public utility may exist independently and
separately from the ownership of the facilities thereof. One can own
said facilities without operating them as a public utility, or conversely,
one may operate a public utility without owning the facilities used to
serve the public. The 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 Osmeña v. COMELEC26
find no application to this case.
 
 The COMELEC pointed out that the issue presented in the
instant case is akin to the Court’s rulings in National Press Club and
Osmeña. 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.

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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.:

Section 6. 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:
6.1 Print 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.
6.2 a. 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.
6.3 All 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.
6.4 No 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.
6.5 All 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.
6.6 Any 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.
 6.7 No 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.
6.8 No 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  Section 13. 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  Section 14. 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 COMELEC’s 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

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30  Black’s 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 appellant’s
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-

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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 city’s 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 COMELEC’s 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 government’s 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
_______________

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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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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 posted on private vehicles and other places frequented by the
public, e.g., commercial establishments, would also be seen by many
people. Thus, there is no reason to single out owners of PUVs and
transport terminals in the prohibition against posting of election
campaign materials.
Further, classifying owners of PUVs and transport terminals apart
from owners of private vehicles and other properties bears no
relation to the stated purpose of Section 7(g) items (5) and (6) of
Resolution No. 9615, i.e., to provide equal time, space and
opportunity to candidates in elections. To stress, PUVs and transport
terminals are private properties. Indeed, the nexus between the
restriction on the freedom of expression of owners of PUVs and
transport terminals and the government’s interest in ensuring equal
time, space, and opportunity for candidates in elections was not
established by the COMELEC.
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
one’s 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])
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