1/4/2021
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consulate, and other foreign service establishment, and not beyond it. Stated
otherwise, the possibility of election-related discord discernibly arises only in places
where our election laws remain operative; conversely, where foreign election laws
apply, the possibility of election-related discord becomes a domestic concern of that
country, and not ours. Hence, by generally banning partisan political activity
regardless of the location where the political speech is specifically uttered
abroad, Section 36.8 goes over and beyond the objective of ensuring "the holding
of an honest and orderly [Philippine (not foreign)] election that upholds the secrecy and
sanctity of the ballot" and "to maintain public order during election day."
While the COMELEC argues that the thirty (30)-day prohibition only applies in the
designated polling precincts[17] located in the above-stated places abroad, the general
language of the law itself betrays such argumentation. On its face, Section 36.8 broadly
prohibits "partisan political activity abroad during the thirty (30)-day overseas voting
period."[18] It is a rule in statutory construction that "a word of general significance in a
statute [- such as the word abroad -] is to be taken in its ordinary and comprehensive
sense, unless it is shown that the word is intended to be given a different or restricted
meaning,"[19] which exception was not shown to obtain in the present case. Hence,
Section 36.8, as worded, foists a prohibition on partisan political activity (including
political speech) that generally applies in all places abroad.
In any case, even assuming that Section 36.8 was intended to restrictively apply only
within the premises of the embassy, consulate, and other foreign service establishment
as the COMELEC argues,[20] it is my view that this intent is not amply reflected in the
provision or even amply clarified in its implementing rules.[21] Hence, there is an
ambiguity in the law's scope that ultimately has the effect of "chilling" the free speech
of our citizens residing overseas. In one case, it was observed that "where vague
statutes regulate behavior that is even close to constitutionally protected, courts fear
[that] a chilling effect will impinge on constitutional rights."[22] Verily, this observation
gains peculiar significance when it comes to regulations that affect political speech. This
is because, in The Diocese of Bacolod v. COMELEC,[23] the Court has ruled that "
[p]olitical speech enjoys preferred protection within our constitutional order. x x x. [I]f
ever there is a hierarchy of protected expressions, political expression would occupy
the highest rank, and among different kinds of political expression, the subject of fair
and honest elections would be at the top.[24] Sovereignty resides in the people [and]
[p]olitical speech is a direct exercise of the sovereignty."[25]
In fine, Section 36.8 of RA 9189, as amended by RA 10590, is a content-neutral
regulation that, however, constitutes a restriction of free speech that is greater than
what is essential to the furtherance of the public interest it was intended to meet. Thus,
based on the above-discussed considerations, I vote to GRANT the petition and
DECLARE the subject provision as unconstitutional.
[1] 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," otherwise known as "THE OVERSEAS
https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/65669
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