1/4/2021
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SECTION 1. The Philippines is a democratic and republican State.
Sovereignty resides in the people and all authority emanates from them.
The electoral exercise is a significant forum for the sovereign. It is during this time that
the primordial and fundamental protection for the speech of every voter and every
citizen is most sacred. It is this type of political speech that lies at the core of the
guarantee of freedom of expression in Article III, Section 4 of the Constitution.
Therefore, any limitation on speech by the electorate must be justified on legitimate
grounds that are clear and indubitable and with means that are narrowly tailored and
only specifically calibrated to achieve those purposes.
Unfortunately, neither Section 36.8[1] of the Overseas Absentee Voting Act of 2013 nor
Section 74(II)(8) of Commission on Elections Resolution No. 10035[2] can be justified
as to its clear purpose or its narrowly circumscribed and calibrated means. Both impose
a prohibition that unduly stifles the votes of Filipinos abroad when we should amplify
their ideas, especially during elections, and even more so that a multitude of them are
overseas workers whose sacrifices are just as abundant.
Rather than a scalpel to precisely remove a specific evil, these regulations carelessly
wield a wayward machete, striking negligent blows on the fundamental rights of
Filipinos living overseas.
In my view, and after a careful examination of the case and a cautious review of our
jurisprudence, the 30-day prohibition on partisan political activities abroad violates the
fundamental right of freedom of expression.
Foremost, the assailed provisions are content-based regulations because they
specifically target a kind of speech identified by its political element. While they seem
to merely regulate the time allowed in conducting partisan political activities, their
prohibition actually cuts deep into the expression's communicative impact and political
consequences. Thus, being content-based regulations, the strict scrutiny test must be
applied. They must bear a heavy presumption of unconstitutionality.
It is uncertain what clear, present, and substantial dangers are sought to be curtailed in
the different countries where the prohibition is applied. Respondent Commission on
Elections failed to discharge its burden of proving that the State has a compelling
interest in prohibiting partisan political activities abroad. It has not shown why the
prohibition is necessary to maintain public order abroad during the election period. As
they failed to overcome the presumption of the law's invalidity, the assailed provisions
must be stricken down.
Absent any compelling State interest, the constitutionally preferred status of free
speech must be upheld.
I
The Constitution guarantees protection to the exercise of free speech, recognizing that
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