MEMORANDUM

To: Atty. Marcelino Maxino

From: Jose Realito A. Acas II
Date: March 3, 2015
Re: Omnibus Election Code: Unconstitutionality of Sec. 3 thereof

Question Presented
In the case of Diocese of Bacolod, a certain regulation promulgated by the
COMELEC was declared unconstitutional because it violated the freedom of speech
of the petitioners. The court declared that it was beyond the powers of COMELEC to
regulate because the petitioners were persons who were non-candidates for the
election and COMELECs powers of regulation only covered those who are
candidates for the election1. In relation to this, the question now presented is
whether or not the same should hold true for section 3 of the Omnibus Election
Code which sets the time frame for campaign periods. How can such section be
deemed unconstitutional?
Short Answer
Yes. Section 3 provides that the campaign for elections. 2 What the law lacks is a
clear boundary as to who are covered by it. If it only covers those that are
candidates, then it would be valid and constitutional. But if non-candidates are
involved, it would already be an infringement to a persons freedom of speech and
expression with regard to voicing out as to whom he/she is voting for. Basically, if a
person wants to air out his opinions as to who, for him, is the best candidate, and he
does so outside the campaign period, then, due to section 3, he would be held
liable.
1 Diocese of Bacolod vs COMELEC, G.R. No. 205728, January 1, 2015
2 Sec. 3, Omnibus Election Code

Discussion
1. Ubi lex non distinguit necnon distinguere debemus
Where the law does not distinguish, we ought not to distinguish. if the law does
not provide for any distinction as to its coverage or as to the manner of application
of the law, its interpretation should also not include in distinction. 3 In relation to
section 3 of the Omnibus Election Code, it would seem that such law covers both
private persons who are not candidates and those persons who are candidates. This
means that any person, whether candidate or not, who would do acts which would
be deemed as campaigning outside the prescribed campaign period, is already
liable of violating such law.
2. Freedom of Speech
Freedom of speech and expression is provided for and protected by the constitution.
They are found under section 4, Article III, of the 1987 Philippine Constitution. In the
case of Gonzales vs COMELEC, the court ruled that these freedoms refer to the
liberty to discuss publicly matters of public concern without any censorship and
punishment, unless if there is an evil that Congress has the right to prevent. 4
Clearly, a persons view, who is not a candidate, regarding the election, is covered
by such definition. Any law which imposes a prior restraint or subsequent liability
would already violate the right protected by the Constitution.
3. Limitation
Freedom of speech is not absolute and that some forms of speeches may be
regulated by the state through its police power. Some types of speeches that may
be regulated are those that are obscene and those that are commercial in nature. 5
But in the case of the Diocese of Bacolod vs COMELEC, the court ruled that a certain
kind of speech, political speech, is afforded with great protection from Constitution.
3 Spouses Plopenio vs DAR, G.R. No. 161090, July 4, 2012
4 Gonzalez vs COMELEC 137 Phil. 471, 492 (1969)
5 Chavez v. Gonzales, 569 Phil. 155, 199 (2008)

In the case, the court ruled that political speech is both intended and received as a
contribution to public deliberation about some issue. 6 This means that if a person
speaks about a certain issue of public concern, such as issues about candidates for
election or the election itself, it is considered as political speech which should be
protected by the constitution and should not be subjected to any restraint.
Conclusion
In summary, section 3 of the Omnibus Election Code is applicable to both persons
who are candidates and those who are not. This is based on the principle that where
the law does not distinguish, we should not distinguish. Since this is the case, if a
person who is not a candidate speaks his mind about the election or the candidates
therein, which is of public concern and interest, outside the campaign period, he is
already liable for violating section 3 of the Omnibus Election Code. Thus, the said
law already serves as a restraint to the persons right to express his thoughts about
the election. This violates his freedom of speech and expression. The said right
might not be absolute but a persons act of speaking his mind about the election is
a form of political speech. A political speech is one greatly protected by the
constitution. Therefore, if a person voices out about the election, he is protected by
the Constitution and such speech should not be subjected to restraint.

6 Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015