SC declares UNCONSTITUTIONAL Sec. 36.8, RA 9189 [CASE DIGEST: G.R. No. 223705, August 14, 2019]

On grounds of violation of the freedom of speech, of expression, and of assembly; denial of substantive due process; violation of the equal protection clause; and violation of the territoriality principle in criminal cases, Loida Nicolas-Lewis (petitioner) seeks to declare as unconstitutional Section 36.8 of Republic Act (R.A.) No. 9189, as amended by R.A. No. 10590 and Section 74(II)(8) of the Commission on Elections (COMELEC) Resolution No. 10035, which prohibit the engagement of any person in partisan political activities abroad during the 30-day overseas voting period.


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

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

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

Of relevance in the instant petition is Section 37 of R.A. No. 10590 which renumbered Section 24 of R.A. No. 9189 and amended the same as follows:
SEC. 36. Prohibited Acts. - In addition to the prohibited acts provided by law, it shall be unlawful:

x x x x

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

x x x x

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

Whether or not Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590, is unconstitutional for violating the right to speech, expression, assembly, and suffrage; for denial of substantive due process and equal protection of laws; and for violating the territoriality principle of our criminal law.

The Court's Ruling

ISSUE: Whether petitioner failed to establish that this case involves a justiciable controversy to warrant the Court's review of a co-equal branch's act.

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

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

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

Section 79(b) of the Omnibus Election Code defines partisan political activity.
Basically, on its face, the questioned provision prohibits the act of campaigning for or against any candidate during the voting period abroad.

In the main, petitioner argues that the prohibition is a violation of Article III, Section 4 of the 1987 Constitution. Petitioner explains that the prohibited partisan political activities as defined under the law are acts of exercising free speech, expression, and assembly.

HELD: GRANTED. The Court declares Section 36.8 of Republic Act No. 9189, as amended by Republic Act No. 10590 as UNCONSTITUTIONAL.

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

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

The paramount consideration in the analysis of the challenged provision, therefore, is the nature of the restraint on protected speech, whether it is content-based or otherwise, content-neutral. As explained in Chavez v. Gonzales (569 Phil. 155, 195, 2008), a content-based regulation is evaluated using the clear and present danger rule, while courts will subject content-neutral restraints to intermediate scrutiny.

Section 36.8 of R.A. No. 9189, as amended by R.A. No. 10590, is an impermissible content-neutral regulation for being overbroad, violating, thus, the free speech clause under Section 4, Article III of the 1987 Constitution. In short, the provision is content-neutral and, therefore, should be viewed using intermediate scrutiny only. However, it is not permissible because it is overbroad.

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

The restraint, however, partakes of a content-neutral regulation as it merely involves a regulation of the incidents of the expression, specifically the time and place to exercise the same. It does not, in any manner, affect or target the actual content of the message. It is not concerned with the words used, the perspective expressed, the message relayed, or the speaker's views.

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

ISSUE: Our point of inquiry focuses on the fourth criterion in the said test, i.e., that the regulation should be no greater than what is essential to the furtherance of the governmental interest. In other words, the issue is whether or not the regulation is narrowly tailored.

The use of the unqualified term "abroad" would bring any intelligible reader to the conclusion that the prohibition was intended to also be extraterritorial in application.

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

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