AKBAYAN Youth v.

 COMELEC

Key Takeaways:

1) The right of suffrage, the same with any other constitutionally

guaranteed rights, is not absolute.

2) The State, in the exercise of its inherent police power, may then
enact laws to safeguard and regulate the act of voter’s registration for
the ultimate purpose of conducting honest, orderly and peaceful
election, to the incidental yet generally important end, that even pre-
election activities could be performed by the duly constituted
authorities in a realistic and orderly manner – one which is not
indifferent and so far removed from the pressing order of the day and
the prevalent circumstances of the times. RA 8189 prevails over RA
8436 in that RA 8189’s provision is explicit as to the prohibition.

3) The youths subject of the petition filed by Akbayan cannot be

considered as “disenfranchised voters.” Foremost, there was no
showing that the said youths even exerted effort to register as voters.
As such, it cannot be said, absurd even, to consider the said youths to
have been “deprived or denied of the opportunity to register as voters.”
In fact, they admit in their petition that they failed to register, for
whatever reason, within the period of registration and came to this
Court and invoked its protective mantle not realizing, so to speak, the
speck in their eyes. Impuris minibus nemo accedat curiam. Let no one
come to court with unclean hands.

4) In a similar vein, well-entrenched is the rule in our jurisdiction

that the law aids the vigilant and not those who slumber on their
rights. Vigilantis sed non dormientibus jura in re subveniunt.

5) The authority of the COMELEC to make a determination

pertaining to the various issues and concerns in an election is not a
ministerial duty that may be compelled by the extraordinary writ of
Mandamus.  Mandamus will not issue to control the exercise of
discretion of a public officer where the law imposes upon him the duty
to exercise his judgment in reference to any manner in which he is
required to act, because it is his judgment that is to be exercised and
not that of the court.
NICOLAS-LEWIS -versus- COMELEC (GR 162759, 04 August 2006)

1) Involves a case whereby the COMELEC denied some dual

citizens their right to vote enshrined under the Overseas Absentee
Voting Act or RA No. 9189 on the premise that the said dual citizens
failed to meet the required one (1) year residency under Article V of
the Constitution.

2) A perusal of the provisions of RA 9225 and RA 9189 will reveal

that the former does not require duals to actually establish residence
and physically stay in the Philippines first before they can exercise
their right to vote. As regards the latter law, Section 4 thereof made an
express identification of ho can vote under it, among others, are
Filipino immigrants and permanent residents in another country
opens an exception and qualifies the disqualification rule under the
Section 5(d) of the same Act.

3) Relevantly, by applying the doctrine of necessary implication,

Constitutional Commission provided for an exception to actual
residency requirement of Section 1, Article 5 of 1987 Constitution,
with respect to qualified Filipinos abroad. Filipino immigrants and
permanent residents in another country may be allowed to vote even
though they do not fulfill the residency requirement of said Sec 1 Art V
of the Constitution.

NICOLAS-LEWIS -versus- COMELEC (GR 223705, 14 August 2019)

1) 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.

2) Petitioner believes that the foregoing provision is

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

3) Freedom of expression has gained recognition as a fundamental

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

“No law shall be passed abridging the freedom

of speech, of expression, or of the press, or the
right of the people peaceably to assemble and
petition the government for redress of
grievances.”

4) A fundamental part of this cherished freedom is the right to

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

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

6) It is true the facial challenges or invalidating of statues on its

face, is disfavored. However, the same may be justified if the intent
is to avert the "chilling effect" on protected speech, the exercise of
which should not at all times be abridged. The Court elucidated:

The theory is that "[w]hen statutes regulate or proscribe speech and no

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

7) There are 3 means by which restraints of freedom of expression

may be tested, to wit: (a) the dangerous tendency doctrine, which were
used in early Philippine case laws; (b) the clear and present danger
rule, which was generally adhered to in more recent cases; and (c) the
balancing of interests’ test, which was also recognized in our
jurisprudence.

8) NOT all prior restraints on speech are invalid. Certain

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

9) Ultimately, 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.

10) The Supreme Court ruled that Section 37 of 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. Content-neutral regulation is a form of restraint
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.

11) In order to be permissible, content-neutral regulation should

pass 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.

12) The failure to meet the fourth criterion is fatal to the regulation’s
validity. The challenged provision’s sweeping and absolute
prohibition against all forms of expression considered as
partisan political activities without any qualification is more
than what is essential to the furtherance of the contemplated
governmental interest.

13) On its face, the challenged provision provides for an

absolute and substantial suppression of speech as it leaves no
ample alternative means for one to freely exercise his or her
fundamental right to participate in partisan political activities.

14) Specifically, 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. In addition, the use
of the general term, i.e., “any person” as distinguished from
“candidates” who are prohibited to engage in any partisan political
activity within the voting period is overbroad.

15) In sum, there are two concepts that are to be emphasized in this
case, and their possible implications in future policy-making and
subsequent court rulings.

16) First, it is to be noted that generally, statutes enjoy the

presumption of constitutionality. This means that every law is
presumed to be valid unless there is a showing of clear and
unequivocal breach of the Constitution. In this case, the Court held
that the issue involved warrants deviation from such principle. It
stated that a law or a statute which purports to restrain the right
to free speech and expression is “an outright departure from the
express mandate of the Constitution against the enactment of
laws abridging free speech and expression, warranting, thus, the
presumption against its validity.”

17) Second, freedom of expression is a preferred right that

“stands on a higher-level than substantive economic freedom or
other liberties”. Despite the legislative regulation having a valid
rationale, it cannot be upheld if it threatens to violate the
constitutional right to free speech, unless it passes the required judicial
scrutiny.
18)