Free speech during the election period

Dominador Awiten .

OUR very good friend Romeo N. Naces reminds all of us, especially personnel incumbent in government service, that per regulations issued jointly by the Commission on Elections and the Civil Service Commission, certain acts are not covered by the prohibition against partisan political activity. They include (1) casting one’s vote; (2) expressing views on political issues; (3 mentioning names of candidates one supports; and (4) doing social media functions such as “liking”, commenting, “sharing”, reposting or following a candidate’s or party’s account. 

In contrast, an act is proscribed as a partisan political activity when it is intended to promote the election or defeat of a candidate or a political party. 

Included in the prohibition are the following: (1) forming a group; (2) holding a meeting; (3) making a speech or giving a view; (4) publishing, displaying or distributing a campaign material; or (5) directly or indirectly soliciting votes, where any of the foregoing is intended to support or go against a candidate or party.

The prohibition covers an officer or employee in the civil service or a member of the Armed Forces, but not certain political officials such as the President, Vice President, Members of the Cabinet, other elective public officials, and the personal and confidential staff of the said officials. 

But elective barangay officials are covered, pursuant to Comelec rules on the principle that they are supposedly non-partisan.

The allowed acts are considered protected speech. 

In the Supreme Court decision in Archbishop of Bacolod v. Comelec, (G.R. 205758, January 5, 2016), which Romy Naces cited in his happy reminder to us all, it is stated:

“(T)he regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections, is unconstitutional.”

At issue in this case was whether the posting of the tarpaulin by the Catholic Archbishop that publicly distinguished the opposing sides on the wisdom of the Reproductive Health (RH) Law as “Team Buhay” against “Team Patay” is subject to Comelec regulation as an election campaign material.

In the ponencia by Justice Marvic Leonen, it was clarified that:  “Comelec’s general role includes a mandate to ensure equal opportunities and reduce spending among candidates and their registered political parties. It is not to regulate or limit the speech of the electorate as it strives to participate in the electoral exercise.”

“The tarpaulin in question may be viewed as producing a caricature of those who are running for public office. Their message may be construed generalizations of very complex individuals and party-list organizations.

“They are classified into black and white: as belonging to ‘Team Patay’ or ‘Team Buhay.’

“But this caricature, though not agreeable to some, is still protected speech.”

The ruling almost exhaustively discussed the primacy of free speech in the so-called hierarchy of human rights.

Freedom of expression relates to the people’s participation in public affairs, including criticism of governmental decisions (in this case, the legislation on RH).

Further, free speech is to be encouraged under the concept of a market place of ideas under the theory espoused by Justice Oliver Wendell Holmes, Jr. that “the ultimate good desired is better reached by [the] free trade in ideas.”

Furthermore, free speech involves self-expression that enhances human dignity. This right is “a means of assuring individual self-fulfillment.”

Joaquin G. Bernas, S.J., in his book The 1987 Constitution of the Republic of the Philippines A Commentary (1996), has explained that freedom of speech and of the press consists of two inclusive aspects:   freedom from prior restraint and freedom from subsequent punishment.

Through the years, jurisprudence developed the tests of validity of government restriction of speech. 

The initial standard was the rule to curtail or punish speech when “it creates a dangerous tendency that the State has the right to prevent.”  Under this rule, it is enough that “there be a rational connection between the speech and the evil apprehended.”

Later, and in accordance with Justice Holmes’s theory of the free market of ideas, the “dangerous tendency” rule gave way to the test of having a “clear and present danger” of a substantive evil that the State is obliged to prevent.

Today, the Courts are giving preference to the “balancing of interests” test.

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Erratum:  In my previous article on Road Safety Advocacy, the name of the incumbent municipal mayor of Panaon, Misamis Occidental should be Francisco T. Paylaga Jr..