Overbroad! SC grants Loida Lewis petition to strike down overseas campaign ban as unconstitutional

The Supreme Court (SC) has granted the petition of New York-based Liberal Party (LP) supporter Loida Nicolas-Lewis to strike down the ban on campaigning abroad during the 30-day overseas voting period for being overbroad.

In a recent 19-page en banc decision, the SC unanimously declared Section 36.8 of the Overseas Absentee Voting Act of 2013 unconstitutional.

It made permanent the temporary restraining order (TRO) it issued on April 19, 2016 and expanded its scope to Philippine embassies, consulates and other posts where overseas voters may exercise their right to vote. Previously, these areas were exempted from the coverage of the TRO.

The SC found the ban an “impermissible content-neutral regulation for being overbroad,” in violation of the free speech clause under Section 4, Article III of the 1987 Constitution.

“It does not provide for well-defined standards, resulting to the ambiguity of its application, which produces a chilling effect on the exercise of free speech and expression, and ultimately, resulting to the unnecessary invasion of the area of protected freedoms,” read the decision penned by Associate Justice Jose Reyes, Jr.

The SC zeroed in on use of the words “any person” and “abroad,” contrary to the Office of the Solicitor-General’s (OSG) claim that the rule was only meant to apply to candidates only.

It also looked into the implementing rules and regulations (IRR) of the law. Section 63 prohibited “all forms of campaigning” abroad, while Section 64 actually prohibited campaigning “during the entire election period.”

The SC said the provision was a “prior restraint” stopping speech and expression in the form of partisan political activities even before they were spoken or made.

Although the law would not target the actual content of the message, the SC said the provision failed to meet the requirement that it should be “no greater than what is essential to the furtherance of the governmental interest.”

While acknowledging the goal to achieve peaceful and credible democratic processes, the SC said “we cannot likewise disparage the most exalted freedom of expression, which is undeniabl recognized as the bedrock of every democratic society.”

Nicolas-Lewis, chair of the U.S. Pinoys for Good Governance (USP4GG), actively campaigned for the tandem of losing presidential candidate Mar Roxas and successful running mate Vice-President Leni Robredo.

She was prompted to file the petition after the ban forced the group to cancel activities in Chicago, New York, Milan and Malta. Yet, she admitted to defying the campaign ban in Tokyo, after now-President Rodrigo Duterte told voters he regretted not having raped an Australian missionary who fell victim during a siege in the Davao City prison. #

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