Audio Recording of Oral Arguments Diocese of Bacolod Vs Comelec, March 19, 2013

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The Diocese of Bacolod, Represented by the Most Rev. Bishop Vicente M. Navarra and the Bishop Himself in his Personal Capacity v. Commission on Elections and the Election Officer of Bacolod City, Atty. Mavil V. Majarucon
GR No. 205728 

SUMMARY OF THE PETITION

FACTS:

Petitioner Diocese of Bacolod is a Roman Catholic diocese and is represented in this petition by its Bishop, the Most Rev. Vicente M. Navarra. Petitioner Bishop Navarra is also filing this petition in his individual and personal capacity as the questioned orders are personally directed at him and also as a concerned citizen, as the issues raised herein are matters of paramount and transcendental importance to the public which must be settled early given the far-reaching implications of the unconstitutional acts of the respondents.

Named as respondents are the Commission on Elections (COMELEC) and its Election Officer of Bacolod City Atty. Mavil V. Majarucon.

On 21 February 2013, the petitioners have caused to be placed on the front wall of the Bacolod Cathedral two sets of Tarpaulin, each sized 6x10 feet, with the message Conscience Vote (Team Buhay/Team Patay (Team Patay Tarpaulin). The Team Patay Tarpaulin contained the names of both Anti- and Pro-Reproductive Health Law senatorial candidates.

In their special civil action for Certiorari and Prohibition under Rule 65 of the Rules of Court, petitioners sought the nullification of the 22 February 2013 order issued by respondent Atty. Majarucon, which orders them to remove the supposed oversized Team Patay Tarpaulin of the Diocese of Bacolod. They also sought to nullify the 27 February 2013 order issued by the COMELEC, through its Law Department, which orders the immediate removal of the Team Patay Tarpaulin and threatening the petitioner Bishop of Bacolod with the filing of an election offense if he fails to cause its immediate removal.

On March 5, 2013, the Supreme Court En Banc issued a temporary restraining order enjoining the respondents COMELEC and Atty. Majarucon from removing the Team Patay Tarpaulin.

ISSUES/GROUNDS:

  1. Respondents’ orders directives to remove or cause the removal of the subject Team Patay Tarpaulin are unconstitutional and void for infringing on petitioners’ right to freedom of expression on their own private property.
  2. Respondents’ orders/directives to remove or cause the removal of the subject Team Patay Tarpaulin are unconstitutional and void for violating the principle of separation of Church and State enshrined in Section 6 of Article II of the 1987 Constitution.

ARGUMENTS/DISCUSSIONS:

  1. The assailed Orders/Directives to remove or cause the removal of the subject Team Patay Tarpaulin are not electoral campaign materials and that the mention of the candidates in the infringes on the petitioners’ right to freedom of expression on their own private property:
    • the subject Team Patay Tarpaulins “are not electoral campaign materials,” stressing that the mentioning of candidates’ name in the second tarpaulin was merely incidental to the petitioners’ campaign against the RH Law, which they have firmly campaigned against even when it was just a bill being deliberated in Congress;
    • subject Team Patay Tarpaulins are “covered by the broader constitutional guaranty of freedom of expression and of conscience  and not by the more narrow and limited election laws, rules, and regulations”;
    • petitioners “have the constitutional right to communicate their views and beliefs by posting the subject Team Patay Tarpaulins on the Bacolod Cathedral, a private property owned by the Diocese of Bacolod”;
    • the RH Law and the candidates and party-lists running in the 2013 National Elections who supported and who opposed its passage into a law are matters of public concern and a legitimate subject of general interest and of discussion;
    • citing the Supreme Court’s jurisprudence in Chavez v. PCGG (G. R. No. 130716, December 9, 1998), the petitioners’ argued that that public concern “…embraces a broad spectrum of subjects which the public may want to know…”
    • citing the Supreme Court’s jurisprudence in Adiong v. COMELEC ( G. R. No. 103956, March 31, 1992), the petitioners’ further argued that “debate on public issues should be uninhibited, robust, and wide open.”
    • the content and the message of the subject Team Patay Tarpaulin “plainly relates to broad issues of interest to the community especially to the members of the Catholic community” and that the subject tarpaulin “simply conveys the position of the petitioners on the RH bill and the public officials who supported or opposed it as it gains relevance in the exercise of the people’s right of suffrage” in the advent of the 2013 polls;
    • considering the petitioners’ message, through the Team Patay Tarpaulin, was a matter of public concern, the message being conveyed and the mode used for its communication and expression to the public is entitled to protection under the Free Expression clause of the Bill of Rights of the 1987 Constitution;
    • not being candidates or political parties, the freedom of expression curtailed by the questioned prohibition, using the logic of the Supreme Court in Adiong v. COMELEC, is not so much that of the candidate or the political party;
    • there is no compelling and substantial State interest that is endangered or which will be endangered by the posting of the subject Team Patay Tarpaulin which would justify the infringement of the preferred right of freedom of expression.
  2. The assailed orders/directives to remove or cause the removal of the subject Team Patay Tarpaulin are unconstitutional and void for violating the principle of separation of Church and State enshrined in Section 6 of Article II of the 1987 Constitution:
    • petitioners’ petition against the RH Law “is not only a matter of exercise of its freedom of expression and of conscience but is also a matter of Catholic faith, morals, belief, and of duty”;
    • the Diocese of Bacolod has taken on the issue of the RH Law as part of her mission as part of its continued advocacy and obedience to the Catholic Church’s teachings;
    • in line with what they believe to be their duty in the faith, the petitioners have declared the RH Law as being anti-life, anti-morals, anti-family, anti-marriage, and contrary to the teachings of the Catholic Church. Consequently, petitioners have called on its members and followers not to support any candidate who is anti-life, and to support those who are pro-life;
    • considering that the views and position of the petitioners on the RH Bill is inextricably connected to its Catholic dogma, faith, and moral teachings, the posting of the subject Team Patay Tarpaulin has already gone beyond mere exercise of freedom of expression and of conscience, but also of the right and privilege of the Church to propagate and spread its teachings which should be insulated from any form of encroachment and intrusion on the part of the State, and its agencies and officials;
    • section 6 of the Article II of the 1987 Constitution monumentalizes the principle of separation of Church and State;
    • at the core of its advocacy against the RH Bill is the Gospel of Life which is a matter of Catholic doctrine, creed and dogma;
    • the petitioners believe, as a matter of faith, that in these times when there is a great conflict between a culture of death and a culture of life, the Church should have the courage to proclaim the culture of life for the common good of society;
    • the questioned orders are unpardonable intrusion into the affairs of the Church and constitute serious violations of the principle of separation of Church and State which the State and its officials, including the herein respondents, are bound to respect, observe, and hold sacred.

PRAYER:

  • Petition be given due course;
  • Issue a Temporary Restraining Order and/or a Writ of Preliminary Injunction restraining respondents from further proceedings in enforcing their orders for the removal of the subject Team Patay Tarpaulin;
  • Declare the questioned orders of respondents as unconstitutional and void and permanently restrain the respondents from enforcing them or any other similar orders; and
  • Issue other reliefs as may be deemed just and equitable under the premises.

THE ISSUES TO BE ARGUED AS PER ADVISORY OF THE COURT EN BANC DATED MARCH 12, 2013

  1. Whether or not the 22 February 2013 Notice/Order by Election Officer Majarucon and the 27 February 2013 Order by the COMELEC Law Department are considered judgments/final orders/resolutions of the COMELEC which would warrant a review of this Court via a Rule 65 Petition.

    (a) Whether or not petitioners violated the hierarchy of courts doctrine and jurisprudential rules governing appeals from COMELEC decisions;

    (b) Assuming arguendo that the aforementioned Orders are not considered judgments/final orders/resolutions of the COMELEC, whether there are exceptional circumstances which would allow this Court to take cognizance of the case.

  2. Whether or not it is relevant to determine whether the tarpaulins are “political advertisement” or “election propaganda” considering that petitioner is not a political candidate.
  3. Whether or not the tarpaulins are a form of expression (protected speech), or election propaganda/political advertisement.

      (a) Assuming arguendo that the tarpaulins are a form of expression, whether or not the COMELEC possesses the authority to regulate the same.

      (b) Whether or not this form of expression may be regulated.

  4. Whether or not the 22 February 2013 Notice/Order by Election Officer Majarucon and the 27 February 2013 Order by the COMELEC Law
    Department violate the Constitutional principle of separation of church and state.
  5. Whether or not the action of the petitioners in posting its tarpaulin violates the Constitutional principle of separation of church and state.

OSG COMMENT: DIOCESE OF BACOLOD, et al. vs. COMELEC, et al.

ISSUES:

  1. Whether or not petitioners availed of the proper remedy in assailing respondents’ notice and letter ordering the removal of the subject tarpaulin.
  2. Whether or not the assailed order and notice issued by respondents are valid and constitutional considering that the same allegedly violate the petitioners’ right to freedom of expression and the principle of separation of Church and State enshrined in the 1987 Constitution.

ARGUMENTS/DISCUSSION:

  1. A petition for certiorari and prohibition under Rule 65 of the Rules of Court filed before this Honorable Court is not the proper remedy to question the subject notice and letter of respondents.
    • Petitioners filed the petition before the Honorable Court, claiming that they have no other plain, speedy and adequate remedy to assail the notice and letter issued by the respondents. Contrary to their claim, prior resort to the COMELEC constitutes a plain, speedy and adequate remedy that bars the petitioners from directly asking relief from the Honorable Court from the alleged injurious effects of the subject letter and notice.
    • In filing the instant suit, the petitioners violated the rule on exhaustion of administrative remedies. Before a party is allowed to seek intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Petitioners should have first brought the matter to the COMELEC En Banc or to any of its Divisions before going directly to the Supreme Court via petition for certiorari and prohibition.
    • The letter and notice issued by the respondents are not subject to review by the Supreme Court, as the power of the Court to review the decisions of the COMELEC is limited only to final decisions, rulings and orders of the COMELEC en banc rendered in the exercise of its adjudicatory or quasi-judicial power (citing Ambil Jr. vs. COMELEC, G.R. No. 143398 October 25, 2000). Considering that the assailed letter and notice are not final orders of the COMELEC En Banc rendered in the exercise of its adjudicatory and quasi-judicial functions but mere issuances of Atty. Marjucom and the COMELEC Law Department, the same are not reviewable by the Honorable Court but by the COMELEC itself.
    • Granting that the assailed notice and letter are subject to review by the Honorable Court, petitioners must be able to show that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the same. Petitioners have not shown facts essential to prove that the assailed notice and letter were issued in a “whimsical, arbitrary or capricious” manner or the abuse of discretion is so “patent and gross” to amount to grave abuse of discretion. The respondents issued the notice andletter pursuant to the COMELEC’s mandate to regulate and supervise the use of mass media during election period as embodied in the 1987 Constitution.
  2. The subject tarpaulin is an election propaganda subject to regulation by respondent COMELEC pursuant to its mandate under Section 4, Article IX-C of the 1987 Constitution. Hence, respondent’s notice and letter ordering its removal for being oversized are valid and constitutional.
    • In furtherance of COMELEC’s mandate to supervise and regulate elections, Congress enacted RA 9006  (the Fair Elections Act), giving the COMELEC power to promulgate its own rules and regulations. Pursuant to this, COMELEC promulgated Resolution 9615 (Rules and Regulations Implementing RA 9006, in connection to the 13 May 2013 National and Local Elections, and Subsequent Elections). Resolution 9615 defines the following terms:
      • Election Campaign or Partisan Political Activity- “an act designed to promote the election of defeat of a particular candidate or candidates to a public office, and shall include, among others, the act of directly or indirectly soliciting votes, pledges of support for or against any candidate”
      • Political Advertisement or Election Propaganda- “ any matter broadcasted, published, printed, displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, motif, initials,and other symbol or representation, that is capable of being associated with a candidate or a party, and is intended to draw the attention of thepublic or a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a public office”

      From the definitions, the subject tarpaulin is a form of election propaganda subject to regulation by the COMELEC pursuant to its mandate under Section 4, Article IX-C of the 1987 Constitution.

    • The subject tarpaulin contains the message “CONSCIENCE VOTE” and classifies the candidates into two groups, “Team Buhay” (with a check mark) and “Team Patay” (with a cross mark). The check mark on “Team Buhay” and the cross mark on “Team Patay” convey to the public that those belonging to the “Team Buhay” should be voted while those under “Team Patay” should be rejected. On its face, it is obvious that the tarpaulin is petitioners’ way of endorsing those candidates who voted against the RH Law and rejecting those who voted for the said law. Petitioner also admitted in their petition that they “have called on its members and followers not to support any candidate who is anti-life, and to support those who are pro-life”. These declarationsconfirm that they put up the tarpaulin not merely to promote the Church’s position on the RH Law but to express their support for or against the candidates listed therein, depending on who they voted on the RH Law.
    • Section 6 of Resolution 9615 sets the size limit for campaign posters to two feet by three feet. This is also embodied in section 82 of the Omnibus Election Code. The subject tarpaulin has the estimated size of six feet by ten feet, which is beyond the maximum allowable size for campaign posters for private properties. In ordering the removal of the tarpaulin, Atty. Marjucom, in her capacity as election officer, merely enforcedsection 6 of Resolution 9615 and section 82 of the Omnibus Election Code. Similarly, in issuing the assailed letter, the COMELEC Law Department only acted pursuant to COMELEC’s regulatory and supervisory functions under the 1987 Constitution.
    • Petitioners cannot claim that their right to freedom of expression has been violated. Petitioners are completely free to express their support for or against any candidate through the use of campaign posters and other forms of propaganda, provided they comply with the limitations provided by law as regards their size.
    • The assailed notice and letter are not forms of censorship. The only reason that the respondents sought the removal of the tarpaulin is that it failed to comply with the maximum allowable size provided by law.
    • Assuming that the assailed notice and letter amount to infringement of the petitioners’ right to freedom of expression, such encroachment is authorized by the Constitution itself. The supervisory and regulatory powers of the COMELEC under the Constitution set to some extent a limit on the right to free speech during the election period. By ordering the petitioners to comply with the size requirement, the COMELEC was exercising its supervisory and regulatory authority for the purpose of ensuring equal opportunity for candidates for political office.
    • The assailed notice and letter do not intrude into purely religious and ecclesiastical matters. They do not seek to regulate the content the subject tarpaulin, but only the size, which respondents found to be in violation of Resolution 9615 and the Omnibus Election Code. On its face, the subject tarpaulin does not convey any religious doctrine of the Catholic Church. Rather, it is an election propaganda. The fact that the tarpaulin did not comply with Resolution 9615 and the Omnibus Election Code gave respondents reason to order its removal, consistent with COMELEC’s mandate to regulate and supervise all form of media communication and information during election period. Thus, respondents did not violate the principle of separation of Church and State provided in the Constitution.

PRAYER: The Petition should be dismissed for lack of merit.