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“The clash of rights demands a delicate balancing of interests approach which is a ‘fundamental postulate of constitutional law.’”^[1]

Once again the Court is asked to draw a carefully drawn balance in the incessant conflicts between rights and regulations, liberties and limitations, and competing demands of the different segments of society. Here, we are confronted with the need to strike a workable and viable equilibrium between a constitutional mandate to maintain free, orderly, honest, peaceful and credible elections, together with the aim of ensuring equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates,^[2] on one hand, and the imperatives of a republican and democratic state,^[3] together with its guaranteed rights of suffrage,^[4] freedom of speech and of the press,^[5] and the people’s right to information,^[6] on the other.

In a nutshell, the present petitions may be seen as in search of the answer to the question – how does the Charter of a republican and democratic State achieve a viable and acceptable balance between liberty, without which, government becomes an unbearable tyrant, and authority, without which, society becomes an intolerable and dangerous arrangement?

Assailed in these petitions are certain regulations promulgated by the Commission on Elections (COMELEC) relative to the conduct of the 2013 national and local elections dealing with political advertisements. Specifically, the petitions question the constitutionality of the limitations placed on aggregate airtime allowed to candidates and political parties, as well as the requirements incident thereto, such as the need to report the same, and the sanctions imposed for violations.

The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of COMELEC Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of candidates and political parties for national election positions to an aggregate total of one hundred twenty (120) minutes and one hundred eighty (180) minutes, respectively. They contend that such restrictive regulation on allowable broadcast time violates freedom of the press, impairs the people’s right to suffrage as well as their right to information relative to the exercise of their right to choose who to elect during the forthcoming elections.

The heart of the controversy revolves upon the proper interpretation of the limitation on the number of minutes that candidates may use for television and radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A. No. 9006), otherwise known as the Fair Election Act.  Pertinent portions of said provision state, thus:

Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to media time and space.  The following guidelines may be amplified on by the COMELEC:

x  x  x  x

6.2 (a)  Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.

b.  Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party.

During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions implementing and interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that a candidate is entitled to the aforestated number of minutes “per station.”^[7]  For the May 2013 elections, however, respondent COMELEC promulgated  Resolution No. 9615 dated January 15, 2013, changing the interpretation of said candidates' and political parties' airtime limitation for political campaigns or advertisements from a “per station” basis, to a “total aggregate” basis.

Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA Network, Incorporated (GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio Mindanao Network, Inc. (RMN) are owners/operators of radio and television networks in the Philippines, while petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the national organization of broadcasting companies in the Philippines representing operators of radio and television stations and said stations themselves.  They sent their respective letters to the COMELEC questioning the provisions of the aforementioned Resolution, thus, the COMELEC held public hearings.  Thereafter, on February 1, 2013, respondent issued Resolution No. 9631 amending provisions of Resolution No. 9615.  Nevertheless, petitioners still found the provisions objectionable and oppressive, hence, the present petitions.

All of the petitioners assail the following provisions of the Resolution:

a) Section 7 (d),^[8] which provides for a penalty of suspension or revocation of an offender's franchise or permit, imposes criminal liability against broadcasting entities and their officers in the event they sell airtime in excess of the size, duration, or frequency authorized in the new rules;

b) Section 9 (a),^[9] which provides for an “aggregate total” airtime instead  of  the  previous  “per station” airtime for political campaigns or advertisements, and also required prior COMELEC approval for candidates' television and radio guestings and appearances;  and

c) Section 14,^[10] which provides for a candidate's “right to reply.”

In addition, petitioner ABC also questions Section 1 (4)^[11] thereof, which defines the term “political advertisement” or “election propaganda,” while petitioner GMA further assails Section 35,^[12] which states that any violation of said Rules shall constitute an election offense.

On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave to Intervene and to File and Admit the Petition-in-Intervention, which was granted by the Court per its Resolution dated March 19, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing the interpretation of candidates' and political parties' airtime limitation for political campaigns or advertisements from a “per station” basis, to a “total aggregate” basis.

Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional and issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, for the reasons set forth hereunder.

Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive aggregate airtime limit and a vague meaning for a proper computation of “aggregate total” airtime, and violates the equal protection guarantee, thereby defeating the intent and purpose of R.A. No. 9006.

Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes on the constitutionally protected freedom of speech, of the press and of expression, and on the right of people to be informed on matters of public concern

Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost impossible burden on broadcast mass media of monitoring a candidate's or political party's aggregate airtime, otherwise, it may incur administrative and criminal liability.

Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not prohibited and penalized as criminal offenses by R.A. No. 9006.

Section 14 of Resolution No. 9615, providing for a candidate's or political party's “right to reply,” is likewise assailed to be unconstitutional for being an improper exercise of the COMELEC's regulatory powers; for constituting prior restraint and infringing petitioners' freedom of expression, speech and the press; and for being violative of the equal protection guarantee.

In addition to the foregoing, petitioner GMA further argues that the Resolution was promulgated without public consultations, in violation of petitioners' right to due process.  Petitioner ABC also avers that the Resolution's definition of the terms “political advertisement” and “election propaganda” suffers from overbreadth, thereby producing a “chilling effect,” constituting prior restraint.

On the other hand, respondent posits in its Comment and Opposition^[13] dated March 8, 2013, that the petition should be denied based on the following reasons:

Respondent contends that the remedies of certiorari and prohibition are not available to petitioners, because the writ of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial powers, while the writ of prohibition only lies against the exercise of judicial, quasi-judicial or ministerial functions.  Said writs do not lie against the COMELEC’s administrative or rule-making powers.

Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights and freedoms they enumerate are not personal to them, rather, they belong to candidates, political parties and the Filipino electorate in general, as the limitations are imposed on candidates, not on media outlets.  It argues that petitioners' alleged risk of exposure to criminal liability is insufficient to give them legal standing as said “fear of injury” is highly speculative and contingent on a future act.

Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.

Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance with R.A. No. 9006 as this would truly give life to the constitutional objective to equalize access to media during elections.  It sees this as a more effective way of levelling the playing field between candidates/political parties with enormous resources and those without much.  Moreover, the Comelec’s issuance of the assailed Resolution is pursuant to Section 4, Article IX (C) of the Constitution which vests on the Comelec the power to supervise and regulate, during election periods, transportation and other public utilities, as well as mass media, to wit:

Sec. 4.  The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.  Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

This being the case, then the Resolutions cannot be said to have been issued with grave abuse of discretion amounting to lack of jurisdiction.

Next, respondent claims that the provisions are not vague because the assailed Resolutions have given clear and adequate mechanisms to protect broadcast stations from potential liability arising from a candidate's or party's violation of airtime limits by putting in the proviso that the station “may require buyer to warrant under oath that such purchase [of airtime] is not in excess of size, duration or frequency authorized by law or these rules.”  Furthermore, words should be understood in the sense that they have in common usage, and should be given their ordinary meaning.  Thus, in the provision for the right to reply, “charges” against candidates or parties must be understood in the ordinary sense, referring to accusations or criticisms.

Respondent also sees no prior restraint in the provisions requiring notice to the Comelec for appearances or guestings of candidates in bona fide news broadcasts.  It points out that the fact that notice may be given 24 hours after first broadcast only proves that the mechanism is for monitoring purposes only, not for censorship.  Further, respondent argues, that for there to be prior restraint, official governmental restrictions on the press or other forms of expression must be done in advance of actual publication or dissemination.  Moreover, petitioners are only required to inform the Comelec of candidates'/parties' guestings, but there is no regulation as to the content of the news or the expressions in news interviews or news documentaries.  Respondent then emphasized that the Supreme Court has held that freedom of speech and the press may be limited in light of the duty of the Comelec to ensure equal access to opportunities for public service.

With regard to the right to reply provision, respondent also does not consider it as restrictive of the airing of bona fide news broadcasts.  More importantly, it stressed, the right to reply is enshrined in the Constitution, and the assailed Resolutions provide that said right can only be had after going through administrative due process.  The provision was also merely lifted from Section 10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the constitutionality of R.A. No. 9006, which cannot be done through a collateral attack.

Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of “political advertisement” or “election propaganda” suffers from overbreadth, as the extent or scope of what falls under said terms is clearly stated in Section 1 (4) of Resolution No. 9615.

It is also respondent's view that the nationwide aggregate total airtime does not violate the equal protection clause, because it does not make any substantial distinctions between national and regional and/or local broadcast stations, and even without the aggregate total airtime rule, candidates and parties are likely to be more inclined to advertise in national broadcast stations.

Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of private property without just compensation.  Respondent emphasizes that radio and television broadcasting companies do not own the airwaves and frequencies through which they transmit broadcast signals; they are merely given the temporary privilege to use the same.  Since they are merely enjoying a privilege, the same may be reasonably burdened with some form of public service, in this case, to provide candidates with the opportunity to reply to charges aired against them.

Lastly, respondent contends that the public consultation requirement does not apply to constitutional commissions such as the Comelec, pursuant to Section 1, Chapter I, Book VII of the Administrative Code of 1987.  Indeed, Section 9, Chapter II, Book VII of said Code provides, thus:

Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule.

However, Section 1, Chapter 1, Book VII of said Code clearly provides:

Section 1.  Scope. - This Book shall be applicable to all agencies as defined in the next succeeding section, except the Congress, the Judiciary, the Constitutional Commissions, military establishments in all matters relating exclusively to Armed Forces personnel, the Board of Pardons and Parole, and state universities and colleges.

Nevertheless, even if public participation is not required, respondent still conducted a meeting with representatives of the KBP and various media outfits on December 26, 2012, almost a month before the issuance of Resolution No. 9615.

On April 2, 2013, petitioner GMA filed its Reply,^[14] where it advanced the following counter-arguments:

According to GMA, a petition for certiorari is the proper remedy to question the herein assailed Resolutions, which should be considered as a “decision, order or ruling of the Commission” as mentioned in Section 1, Rule 37 of the COMELEC Rules of Procedure which provides:

Section  1.  Petition for Certiorari; and Time to File. - Unless otherwise provided by law, or by any specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation.

GMA further stressed that this case involves national interest, and the urgency of the matter justifies its resort to the remedy of a petition for certiorari.

Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for declaratory relief because such action only asks the court to make a proper interpretation of the rights of parties under a statute or regulation.  Such a petition does not nullify the assailed statute or regulation, or grant injunctive relief, which petitioners are praying for in their petition.  Thus, GMA maintains that a petition for certiorari is the proper remedy.

GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking said law.  GMA points out that it has stated in its petition that the law in fact allows the sale or donation of airtime for political advertisements and does not impose criminal liability against radio and television stations.  What it is assailing is the COMELEC's erroneous interpretation of the law's provisions by declaring such sale and/or donation of airtime unlawful, which is contrary to the purpose of the Fair Election Act.

GMA then claims that it has legal standing to bring the present suit because:

x  x  x First, it has personally suffered a threatened injury in the form of risk of criminal liability because of the alleged unconstitutional and unlawful conduct of respondent COMELEC in expanding what was provided for in R.A. No. 9006.  Second, the injury is traceable to the challenged action of respondent COMELEC, that is, the issuance of the assailed Resolutions.  Third, the injury is likely to be redressed by the remedy sought in petitioner GMA's Petition, among others, for the Honorable Court to nullify the challenged pertinent provisions of the assailed Resolutions.^[15]

On substantive issues, GMA first argues that the questioned Resolutions are contrary to the objective and purpose of the Fair Election Act.  It points out that the Fair Election Act even repealed the political ad ban found in the earlier law, R.A. No. 6646.  The Fair Election Act also speaks of “equal opportunity” and “equal access,” but said law never mentioned equalizing the economic station of the rich and the poor, as a declared policy.  Furthermore, in its opinion, the supposed correlation between candidates' expenditures for TV ads and actually winning the elections, is a mere illusion, as there are other various factors responsible for a candidate's winning the election. GMA then cites portions of the deliberations of the Bicameral Conference Committee on the bills that led to the enactment of the Fair Election Act, and alleges that this shows the legislative intent that airtime allocation should be on a “per station” basis.  Thus, GMA claims it was arbitrary and a grave abuse of discretion for the COMELEC to issue the present Resolutions imposing airtime limitations on an “aggregate total” basis.

It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on them, because their failure to strictly monitor the duration of total airtime that each candidate has purchased even from other stations would expose their officials to criminal liability and risk losing the station's good reputation and goodwill, as well as its franchise.  It argues that the wordings of the Resolutions belie the COMELEC's claim that petitioners would only incur liability if they “knowingly” sell airtime beyond the limits imposed by the Resolutions, because the element of knowledge is clearly absent from the provisions thereof.  This makes the provisions have the nature of malum prohibitum.

Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and is unconstitutional, opining that “[t]he reviewing power of respondent COMELEC and its sole judgment of a news event as a political advertisement are so pervasive under the assailed Resolutions, and provoke the distastes or chilling effect of prior restraint”^[16] as even a legitimate exercise of a constitutional right might expose it to legal sanction.  Thus, the governmental interest of leveling the playing field between rich and poor candidates cannot justify the restriction on the freedoms of expression, speech and of the press.

On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election Code, pertinent portions of which provide, thus:

Section 82.  Lawful election propaganda. - Lawful election propaganda shall include:

x x x x

All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted.

There having been no prior public consultation held, GMA contends that the COMELEC is guilty of depriving petitioners of its right to due process of law.

GMA then concludes that it is also entitled to a temporary restraining order, because the implementation of the Resolutions in question will cause grave and irreparable damage to it by disrupting and emasculating its mandate to provide television and radio services to the public, and by exposing it to the risk of incurring criminal and administrative liability by requiring it to perform the impossible task of surveillance and monitoring, or the broadcasts of other radio and television stations.

Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed a Supplemental Comment and Opposition^[17] where it further expounded on the legislative intent behind the Fair Election Act, also quoting portions of the deliberations of the Bicameral Conference Committee, allegedly adopting the Senate Bill version setting the computation of airtime limits on a per candidate, not per station, basis.  Thus, as enacted into law, the wordings of Section 6 of the Fair Election Act shows that the airtime limit is imposed on a per candidate basis, rather than on a per station basis.  Furthermore, the COMELEC states that petitioner-intervenor Senator Cayetano is wrong in arguing that there should be empirical data to support the need to change the computation of airtime limits from a per station basis to a per candidate basis, because nothing in law obligates the COMELEC to support its Resolutions with empirical data, as said airtime limit was a policy decision dictated by the legislature itself, which had the necessary empirical and other data upon which to base said policy decision.

The COMELEC then points out that Section 2 (7),^[18] Article IX (C) of the Constitution empowers it to recommend to Congress effective measures to minimize election spending and in furtherance of such constitutional power, the COMELEC issued the questioned Resolutions, in faithful implementation of the legislative intent and objectives of the Fair Election Act.

The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion of his name, initial, image, brand, logo, insignia and/or symbol in tandem advertisements will be charged against his airtime limits by pointing out that what will be counted against a candidate's airtime and expenditures are those advertisements that have been paid for or donated to them to which the candidate has given consent.

With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue abridgement of the freedom of speech and expression, the COMELEC counters that “the Resolutions enjoy constitutional and congressional imprimatur.  It is the Constitution itself that imposes the restriction on the freedoms of speech and expression, during election period, to promote an important and significant governmental interest, which is to equalize, as far as practicable, the situation of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign 'war chests.'”^[19]

Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to information on matters of public concern, because in this case, the COMELEC is not withholding access to any public record.

On April 16, 2013, this Court issued a Temporary Restraining Order^[20] (TRO) in view of the urgency involved and to prevent irreparable injury that may be caused to the petitioners if respondent COMELEC is not enjoined from implementing Resolution No. 9615.

On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion for Early Resolution of the Consolidated Petitions.^[21]

On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment^[22]  to the said Motion. Not long after, ABC followed suit and filed its own Opposition to the Motion^[23] filed by the respondent.

In the interim, respondent filed a Second Supplemental Comment and Opposition^[24] dated April 8, 2013.

In the Second Supplemental Comment and Opposition, respondent delved on points which were not previously discussed in its earlier Comment and Supplemental Comment, particularly those raised in the petition filed by petitioner ABS-CBN and KBP.

Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the assailed Resolutions and that petitioners ABS-CBN and KBP have no locus standi to file the present petition.

Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No. 9006 conclusively shows that congress intended the airtime limits to be computed on a “per candidate” and not on a “per station” basis.  In addition, the legal duty of monitoring lies with the COMELEC.  Broadcast stations are merely required to submit certain documents to aid the COMELEC in ensuring that candidates are not sold airtime in excess of the allowed limits.

Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to inform the COMELEC of the appearances or guesting of candidates in bona fide news broadcasts.  It is for monitoring purposes only, not censorship.  It does not control the subject matter of news broadcasts in anyway.  Neither does it prevent media outlets from covering candidates in news interviews, news events, and news documentaries, nor prevent the candidates from appearing thereon.

As for the right to reply, respondent insists that the right to reply provision cannot be considered a prior restraint on the freedoms of expression, speech and the press, as it does not in any way restrict the airing of bona fide new broadcasts.  Media entities are free to report any news event, even if it should turn out to be unfavourable to a candidate or party.  The assailed Resolutions merely give the candidate or party the right to reply to such charges published or aired against them in news broadcasts.

Moreover, respondent contends that the imposition of the penalty of suspension and revocation of franchise or permit for the sale or donation of airtime beyond the allowable limits is sanctioned by the Omnibus Election Code.

Meanwhile, RMN filed its Petition on April 8, 2013.  On June 4, 2013, the Court issued a Resolution^[25] consolidating the case with the rest of the petitions and requiring respondent to comment thereon.

On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition.^[26]  Therein, respondent stated that the petition filed by RMN repeats the issues that were raised in the previous petitions.  Respondent, likewise, reiterated its arguments that certiorari in not the proper remedy to question the assailed resolutions and that RMN has no locus standi to file the present petition.  Respondent maintains that the arguments raised by RMN, like those raised by the other petitioners are without merit and that RMN is not entitled to the injunctive relief sought.

The petition is partly meritorious.

At the outset, although the subject of the present petitions are Resolutions promulgated by the COMELEC relative to the conduct of the 2013 national and local elections, nevertheless the issues raised by the petitioners have not been rendered moot and academic by the conclusion of the 2013 elections.  Considering that the matters elevated to the Court for resolution are susceptible to repetition in the conduct of future electoral exercises, these issues will be resolved in the present action.

PROCEDURAL ASPECTS

Matters of procedure and technicalities normally take a backseat when issues of substantial and transcendental importance are presented before the Court. So the Court does again in this particular case.

Proper Remedy

Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have taken to question the assailed Resolutions of the Comelec. Technically, respondent may have a point. However, considering the very important and pivotal issues raised, and the limited time, such technicality should not deter the Court from having to make the final and definitive pronouncement that everyone else depends for enlightenment and guidance. “[T]his Court has in the past seen fit to step in and resolve petitions despite their being the subject of an improper remedy, in view of the public importance of the issues raised therein.^[27]

It has been in the past, we do so again.

Locus Standi

Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to question the personality of the parties invoking the Court’s jurisdiction.  The Court has routinely made reference to a liberalized stance when it comes to petitions raising issues of transcendental importance to the country.  Invariably, after some discussions, the Court would eventually grant standing.^[28]

In this particular case, respondent also questions the standing of the petitioners. We rule for the petitioners. For petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a candidate whose ability to reach out to the electorate is impacted by the assailed Resolutions.

For the broadcast companies, they similarly have the standing in view of the direct injury they may suffer relative to their ability to carry out their tasks of disseminating information because of the burdens imposed on them. Nevertheless, even in regard to the broadcast companies invoking the injury that may be caused to their customers or the public – those who buy advertisements and the people who rely on their broadcasts – what the Court said in White Light Corporation v. City of Manila^[29] may dispose of the question. In that case, there was an issue as to whether owners of establishments offering “wash-up” rates may have the requisite standing on behalf of their patrons’ equal protection claims relative to an ordinance of the City of Manila which prohibited “short-time” or “wash-up” accommodation in motels and similar establishments. The Court essentially condensed the issue in this manner: “[T]he crux of the matter is whether or not these establishments have the requisite standing to plead for protection of their patrons’ equal protection rights.”^[30] The Court then went on to hold:

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. More importantly, the doctrine of standing is built on the principle of separation of powers, sparing as it does unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the Constitution. The constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise definition. In this jurisdiction, the extancy of “a direct and personal interest” presents the most obvious cause, as well as the standard test for a petitioner’s standing. In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.

For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are appropriate. x x x

x x x x

American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by state action. x x x

x x x x

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.  In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a “wash-rate” time frame.^[31]

If in regard to commercial undertakings, the owners may have the right to assert a constitutional right of their clients, with more reason should establishments which publish and broadcast have the standing to assert the constitutional freedom of speech of candidates and of the right to information of the public, not to speak of their own freedom of the press. So, we uphold the standing of petitioners on that basis.

SUBSTANTIVE ASPECTS

Aggregate Time Limits

COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC resolutions relative to the airtime limitations on political advertisements. This essentially consists in computing the airtime on an aggregate basis involving all the media of broadcast communications compared to the past where it was done on a per station basis. Thus, it becomes immediately obvious that there was effected a drastic reduction of the allowable minutes within which candidates and political parties would be able to campaign through the air. The question is accordingly whether this is within the power of the Comelec to do or not. The Court holds that it is not within the power of the Comelec to do so.

a. Past elections and airtime limits

The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A. No. 9006 [2001])^[32] – one hundred (120) minutes of television advertisement and one-hundred eighty (180) minutes for radio advertisement. For the 2004 elections, the respondent COMELEC promulgated Resolution No. 6520^[33] implementing the airtime limits by applying said limitation on a per station basis.^[34] Such manner of determining airtime limits was likewise adopted for the 2007 elections, through Resolution No. 7767.^[35] In the 2010 elections, under Resolution No. 8758,^[36] the same was again adopted. But for the 2013 elections, the COMELEC, through Resolution No. 9615, as amended by Resolution No. 9631, chose to aggregate the total broadcast time among the different broadcast media, thus:

Section 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. – All parties and bona fide candidates shall have equal access to media time and space for their election propaganda during the campaign period subject to the following requirements and/or limitations:

a.  Broadcast Election Propaganda

The duration of an air time that a candidate, or party may use for their broadcast advertisements or election propaganda shall be, as follows:

For Candidates/Registered Political parties for a National Elective   Position	Not more than an aggregate total of one hundred (120) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and one hundred eighty (180) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation
For Candidates/Registered Political parties for a Local Elective Position	Not more than an aggregate total of sixty (60) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and ninety (90) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation.

In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias, color motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned together in the broadcast election propaganda or advertisements, the length of time during which they appear or are being mentioned or promoted will be counted against the airtime limits allotted for the said candidates or parties and the cost of the said advertisement will likewise be considered as their expenditures, regardless of whoever paid for the advertisements or to whom the said advertisements were donated.

x x x x^[37]

Corollarily, petitioner-intervenor, Senator Cayetano, alleges:

6.15.  The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent Comelec without consultation with the candidates for the 2013 elections, affected parties such as media organizations, as well as the general public. Worse, said change was put into effect without explaining the basis therefor and without showing any data in support of such change. Respondent Comelec merely maintained that such action “is meant to level the playing field between the moneyed candidates and those who don’t have enough resources,” without particularizing the empirical data upon which such a sweeping statement was based. This was evident in the public hearing held on 31 January 2013 where petitioner GMA, thru counsel, explained that no empirical data on the excesses or abuses of broadcast media were brought to the attention of the public by respondent Comelec, or even stated in the Comelec Resolution No. 9615. Thus –

x x x x

Chairman Brillantes

So if we can regulate and amplify, we may amplify meaning we can expand if we want to. But the authority of the Commission is if we do not want to amplify and we think that the 120 or 180 is okay we cannot be compelled to amplify. We think that 120 or 180 is okay, is enough.

Atty. Lucila

But with due respect Your Honor, I think the basis of the resolution is found in the law and the law has been enterpreted (sic) before in 2010 to be 120 per station, so why the change, your Honor?

Chairman Brillantes

No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that is our prerogative. How can you encroach and what is unconstitutional about it?

Atty. Lucila

We are not questioning the authority of the Honorable Commission to regulate Your Honor, we are just raising our concern on the manner of regulation because as it is right now, there is a changing mode or sentiments of the Commission and the public has the right to know, was there rampant overspending on political ads in 2010, we were not informed Your Honor. Was there abuse of the media in 2010, we were not informed Your Honor. So we would like to know what is the basis of the sudden change in this limitation, Your Honor. . And law must have a consistent interpretation that [is]our position, Your Honor.

Chairman Brillantes

But my initial interpretation, this is personal to this representation counsel, is that if the Constitution allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify you  should leave this to the discretion of the Commission. Which means if previous Commissions felt that expanding it should be part of our authority that was a valid exercise if we reduce it to what is provided for by law which is 120-180 per medium, TV, radio, that  is  also within the law and that is still within our prerogative as provided for by the Constitution. If you say we have to expose the candidates to the public then I think the reaction should come, the negative reaction should come from the candidates not from the media, unless you have some interest to protect directly. Is there any interest on the part of the media to expand it?

Atty. Lucila

Well, our interest Your Honor is to participate in this election Your Honor and we have been constantly (sic) as the resolution says and even in the part involved because you will be getting some affirmative action time coming from the media itself and Comelec time coming from the media itself. So we could like to be both involved in the whole process of the exercise of the freedom of suffrage Your Honor.

Chairman Brillantes

Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually to level the playing field. That should be the paramount consideration. If we allow everybody to make use of all their time and all radio time and TV time then there will be practically unlimited use of the mass media....

Atty. Lucila

Was there in 2010 Your Honor, was there any data to support that there was an unlimited and abuse of a (sic) political ads in the mass media that became the basis of this change in interpretation Your Honor? We would like to know about it Your Honor.

Chairman Brillantes

What do you think there was no abuse in 2010?

Atty. Lucila

As far as the network is concern, there was none Your Honor.

Chairman Brillantes

There was none......

Atty. Lucila
I’m sorry, Your Honor...

Chairman Brillantes

Yes, there was no abuse, okay, but there was some advantage given to those who took... who had the more moneyed candidates took advantage of it.

Atty. Lucila

But that is the fact in life, Your Honor there are poor candidates, there are rich candidates. No  amount of  law or regulation can even level the playing filed (sic) as far as the economic station in life of the candidates are concern (sic) our Honor.^[38]

Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor went on to allege that:

6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a), respondent Comelec arbitrarily changed the rule from per station basis to aggregate airtime basis. Indeed, no credence should be given to the cliched explanation of respondent Comelec (i.e. leveling the playing field) in its published statements which in itself is a mere reiteration of the rationale for the enactment of the political ad ban of Republic Act No. 6646, and which has likewise been foisted when said political ad ban was lifted by R.A. 9006.^[39]

From the foregoing, it does appear that the Comelec did not have any other basis for coming up with a new manner of determining allowable time limits except its own idea as to what should be the maximum number of minutes based on its exercise of discretion as to how to level the playing field. The same could be encapsulized in the remark of the Comelec Chairman that “if the Constitution allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify you should leave this to the discretion of the Commission.”^[40]

The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded anon.

2. COMELEC is duty bound to come up
   with reasonable basis for changing the
   interpretation and implementation of
   the airtime limits
   

There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce election laws but it cannot exercise its powers without limitations – or reasonable basis. It could not simply adopt measures or regulations just because it feels that it is the right thing to do, in so far as it might be concerned. It does have discretion, but such discretion is something that must be exercised within the bounds and intent of the law. The COMELEC is not free to simply change the rules especially if it has consistently interpreted a legal provision in a particular manner in the past. If ever it has to change the rules, the same must be properly explained with sufficient basis.

Based on the transcripts of the hearing conducted by the COMELEC after it had already promulgated the Resolution, the respondent did not fully explain or justify the change in computing the airtime allowed candidates and political parties, except to make reference to the need to “level the playing field.” If the “per station” basis was deemed enough to comply with that objective in the past, why should it now be suddenly inadequate? And, the short answer to that from the respondent, in a manner which smacks of overbearing exercise of discretion, is that it is within the discretion of the COMELEC. As quoted in the transcript, “the right to amplify is with the COMELEC. Nobody can encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that is the prerogative of the Commission then they could amplify it to expand it.  If the current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that is our prerogative. How can you encroach and what is unconstitutional about it?”^[41]

There is something basically wrong with that manner of explaining changes in administrative rules. For one, it does not really provide a good basis for change. For another, those affected by such rules must be given a better explanation why the previous rules are no longer good enough. As the Court has said in one case:

While stability in the law, particularly in the business field, is desirable, there is no demand that the NTC slavishly follow precedent. However, we think it essential, for the sake of clarity and intellectual honesty, that if an administrative agency decides inconsistently with previous action, that it explain thoroughly why a different result is warranted, or if need be, why the previous standards should no longer apply or should be overturned. Such explanation is warranted in order to sufficiently establish a decision as having rational basis. Any inconsistent decision lacking thorough, ratiocination in support may be struck down as being arbitrary. And any decision with absolutely nothing to support it is a nullity.^[42]

What the COMELEC came up with does not measure up to that level of requirement and accountability which elevates administrative rules to the level of respectability and acceptability. Those governed by administrative regulations are entitled to a reasonable and rational basis for any changes in those rules by which they are supposed to live by, especially if there is a radical departure from the previous ones.

3. The COMELEC went beyond the
   authority granted it by the law in
   adopting “aggregate” basis in the
   determination of allowable airtime

The law, which is the basis of the regulation subject of these petitions, pertinently provides:

6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation;  x x x

The law, on its face, does not justify a conclusion that the maximum allowable airtime should be based on the totality of possible broadcast in all television or radio stations. Senator Cayetano has called our attention to the legislative intent relative to the airtime allowed – that it should be on a “per station” basis.^[43]

This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the previous provision, Section 11(b) of Republic Act No. 6646,^[44] which prohibited direct political advertisements – the so-called “political ad ban.” If under the previous law, no candidate was allowed to directly buy or procure on his own his broadcast or print campaign advertisements, and that he must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006 relieved him or her from that restriction and allowed him or her to broadcast time or print space subject to the limitations set out in the law. Congress, in enacting R.A. No. 9006, felt that the previous law was not an effective and efficient way of giving voice to the people. Noting the debilitating effects of the previous law on the right of suffrage and Philippine democracy, Congress decided to repeal such rule by enacting the Fair Election Act.

In regard to the enactment of the new law, taken in the context of the restrictive nature of the previous law, the sponsorship speech of Senator Raul Roco is enlightening:

The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA 6646.  In view of the importance of their appeal in connection with the thrusts of the bill, I hereby quote these sections in full:

“SEC. 85.  Prohibited forms of election propaganda. – It shall be unlawful:

“(a)  To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote for or against any candidate unless they hear the names and addresses of the printed and payor as required in Section 84 hereof;

“(b)  To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party;

“(c)  To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandannas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate;

“(d)  To show or display publicly any advertisement or propaganda for or against any candidate by means of cinematography, audio-visual units or other screen projections except telecasts which may be allowed as hereinafter provided; and

“(e)  For any radio broadcasting or television station to sell or give free of charge airtime for campaign and other political purposes except as authorized in this Code under the rules and regulations promulgated by the Commission pursuant thereto;

“Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or torn down by the representative of the Commission upon specific authority of the Commission.”

“SEC. 10.  Common Poster Areas. – The Commission shall designate common poster areas in strategic public places such as markets, barangay centers and the like wherein candidates can post, display or exhibit election propaganda to announce or further their candidacy.

“Whenever feasible common billboards may be installed by the Commission and/or non-partisan private or civic organizations which the Commission may authorize whenever available, after due notice and hearing, in strategic areas where it may readily be seen or read, with the heaviest pedestrian and/or vehicular traffic in the city or municipality.

The space in such common poster areas or billboards shall be allocated free of charge, if feasible, equitably and impartially among the candidates in the province, city or municipality.

“SEC. 11.  Prohibited Forms of Election Propaganda. – In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:  (a)  to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether private or public, except in common poster areas and/or billboards provided in the immediately preceding section, at the candidate’s own residence, or at the campaign headquarters of the candidate or political party:  Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area; Provided, further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) feet and not exceeding three (3) feet by eight (8) each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; and

“(b)  For any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or give for free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881.  Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign.”

The repeal of the provision on the Common Poster Area implements the strong recommendations of the Commission on Elections during the hearings.  It also seeks to apply the doctrine enunciated by the Supreme Court in the case of Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March 1992.  Here a unanimous Supreme Court ruled:  The COMELEC’s prohibition on the posting of decals and stickers on “mobile” places whether public or private except [in] designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No. 1742.  In so doing, we move one step towards further ensuring “free, orderly, honest, peaceful and credible elections” as mandated by the Constitution.^[45]

Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to provide a more expansive and liberal means by which the candidates, political parties, citizens and other stake holders in the periodic electoral exercise may be given a chance to fully explain and expound on their candidacies and platforms of governance, and for the electorate to be given a chance to know better the personalities behind the candidates. In this regard, the media is also given a very important part in that undertaking of providing the means by which the political exercise becomes an interactive process. All of these would be undermined and frustrated with the kind of regulation that the respondent came up with.

The respondent gave its own understanding of the import of the legislative deliberations on the adoption of R.A. No. 9006 as follows:

The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per candidate or political party aggregate total airtime limits on political advertisements and election propaganda. This is evidenced by the dropping of the “per day per station” language embodied in both versions of the House of Representatives and Senate bills in favour of the “each candidate” and “not more than” limitations now found in Section 6 of R.A. 9006.

The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:

House Bill No. 9000:

SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:

Sec. 86. Regulation of Election Propaganda Through Mass Media.

x x x     x x x     x x x

A) The total airtime available to the candidate and political party, whether by purchase or by donation, shall be limited to five (5) minutes per day in each television, cable television and radio stations during the applicable campaign period.

Senate Bill No. 1742:

SEC. 5. Equal Access to Media Space and Time. – All registered parties and bona fide candidates shall have equal access to media space and time. The following guidelines may be amplified by the COMELEC.

x x x      x x x      x x x

2. The total airtime available for each registered party and bona fide candidate whether by purchase or donation shall not exceed a total of one (1) minute per day per television or radio station. (Emphasis supplied.)

As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the aggregate airtime limits to be computed on per candidate or party basis. Otherwise, if the legislature intended the computation to be on per station basis, it could have left the original “per day per station” formulation.^[46]

The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent that the COMELEC wants this Court to put on the final language of the law. If anything, the change in language meant that the computation must not be based on a “per day” basis for each television or radio station. The same could not therefore lend itself to an understanding that the total allowable time is to be done on an aggregate basis for all  television or radio stations.

Clearly, the respondent in this instance went beyond its legal mandate when it provided for rules beyond what was contemplated by the law it is supposed to implement. As we held in Lokin, Jr. v. Commission on Elections:^[47]

The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration of all laws and regulations relative to the conduct of an election, has neither the authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the COMELEC issued for that purpose should always be in accord with the law to be implemented, and should not override, supplant, or modify the law. It is basic that the IRRs should remain consistent with the law they intend to carry out.

Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the law’s general provisions into effect. The law itself cannot be expanded by such IRRs, because an administrative agency cannot amend an act of Congress.^[48]

In the case of Lokin, Jr., the COMELEC’s explanation that the Resolution then in question did not add anything but merely reworded and rephrased the statutory provision did not persuade the Court. With more reason here since the COMELEC not only reworded or rephrased the statutory provision – it practically replaced it with its own idea of what the law should be, a matter that certainly is not within its authority. As the Court said in Villegas v. Subido:^[49]

One last word. Nothing is better settled in the law than that a public official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such there is no presumption that they are empowered to act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant, they are devoid of power. What they do suffers from a fatal infirmity. That principle cannot be sufficiently stressed.  In the appropriate language of Chief Justice Hughes: “It must be conceded that departmental zeal may not be permitted to outrun the authority conferred by statute.” Neither the high dignity of the office nor the righteousness of the motive then is an acceptable substitute. Otherwise the rule of law becomes a myth. Such an eventuality, we must take all pains to avoid.^[50]

So it was then. So does the rule still remains the same.

4. Section 9 (a) of COMELEC Resolution
   No. 9615 on airtime limits also goes
   against the constitutional guaranty of
   freedom of expression, of speech
   and of the press

The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said. And where there is a need to reach a large audience, the need to access the means and media for such dissemination becomes critical. This is where the press and broadcast media come along. At the same time, the right to speak and to reach out would not be meaningful if it is just a token ability to be heard by a few. It must be coupled with substantially reasonable means by which the communicator and the audience could effectively interact. Section 9 (a) of COMELEC Resolution No. 9615, with its adoption of the “aggregate-based” airtime limits unreasonably restricts the guaranteed freedom of speech and of the press.

Political speech is one of the most important expressions protected by the Fundamental Law. “[F]reedom of speech, of expression, and of the press are at the core of civil liberties and have to be protected at all costs for the sake of democracy.”^[51] Accordingly, the same must remain unfettered unless otherwise justified by a compelling state interest.

In regard to limitations on political speech relative to other state interests, an American case observed:

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending “relative to a clearly identified candidate,” 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication. Although the Act’s limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.^[52]

Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is challenged as being an unreasonable basis for determining the allowable air time that candidates and political parties may avail of. Petitioner GMA came up with its analysis of the practical effects of such a regulation:

5.8.  Given the reduction of a candidate’s airtime minutes in the New Rules, petitioner GMA estimates that a national candidate will only have 120 minutes to utilize for his political advertisements in television during the whole campaign period of 88 days, or will only have 81.81 seconds per day TV exposure allotment.  If he chooses to place his political advertisements in the 3 major TV networks in equal allocation, he will only have 27.27 seconds of airtime per network per day.  This barely translates to 1 advertisement spot on a 30-second spot basis in television.

5.9.  With a 20-hour programming per day and considering the limits of a station’s coverage, it will be difficult for 1 advertising spot to make a sensible and feasible communication to the public, or in political propaganda, to “make known [a candidate’s] qualifications and stand on public issues”.

5.10  If a candidate loads all of his 81.81 seconds per day in one network, this will translate to barely three 30-second advertising spots in television on a daily basis using the same assumptions above.

5.11  Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila, the commercial advertisements in television are viewed by only 39.2% of the average total day household audience if such advertisements are placed with petitioner GMA, the leading television network nationwide and in Mega Manila.  In effect, under the restrictive aggregate airtime limits in the New Rules, the three 30-second political advertisements of a candidate in petitioner GMA will only be communicated to barely 40% of the viewing audience, not even the voting population, but only in Mega Manila, which is defined by AGB Nielsen Philippines to cover Metro Manila and certain urban areas in the provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and Pampanga.  Consequently, given the voting population distribution and the drastically reduced supply of airtime as a result of the New Rules’ aggregate airtime limits, a national candidate will be forced to use all of his airtime for political advertisements in television only in urban areas such as Mega Manila as a political campaign tool to achieve maximum exposure.

5.12  To be sure, the people outside of Mega Manila or other urban areas deserve to be informed of the candidates in the national elections, and the said candidates also enjoy the right to be voted upon by these informed populace.^[53]

The Court agrees. The assailed rule on “aggregate-based” airtime limits is unreasonable and arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the adverted reason for imposing the “aggregate-based” airtime limits – leveling the playing field – does not constitute a compelling state interest which would justify such a substantial restriction on the freedom of candidates and political parties to communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in the absence of a clear-cut basis for the imposition of such a prohibitive measure.  In this particular instance, what the COMELEC has done is analogous to letting a bird fly after one has clipped its wings.

It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as many of the electorates as possible, then it might also be necessary that he conveys his message through his advertisements in languages and dialects that the people may more readily understand and relate to. To add all of these airtimes in different dialects would greatly hamper the ability of such candidate to express himself – a form of suppression of his political speech.

Respondent itself states that “[t]elevision is arguably the most cost-effective medium of dissemination. Even a slight increase in television exposure can significantly boost a candidate's popularity, name recall and electability.”^[54] If that be so, then drastically curtailing the ability of a candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to speak as a means of connecting with the people.

Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the landmark Pentagon Papers case: “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”^[55]

In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting as a sounding board, the people ultimately would be the victims.

5. Section 9 (a) of Resolution 9615 is
   violative of the people’s
   right to suffrage
   

Fundamental to the idea of a democratic and republican state is the right of the people to determine their own destiny through the choice of leaders they may have in government. Thus, the primordial importance of suffrage and the concomitant right of the people to be adequately informed for the intelligent exercise of such birthright. It was said that:

x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority. He has a voice in his Government and whenever possible it is the solemn duty of the judiciary, when called upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This, fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with utmost, with reasonable, liberality. x x x^[56]

It has also been said that “[c]ompetition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms.”^[57]  Candidates and political parties need adequate breathing space – including the means to disseminate their ideas. This could not be reasonably addressed by the very restrictive manner by which the respondent implemented the time limits in regard to political advertisements in the broadcast media.

6. Resolution No. 9615 needs
   prior hearing before adoption

The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public hearing on January 31, 2013 to explain what it had done, particularly on the aggregate-based air time limits. This circumstance also renders the new regulation, particularly on the adoption of the aggregate-based airtime limit, questionable. It must not be overlooked that the new Resolution introduced a radical change in the manner in which the rules on airtime for political advertisements are to be reckoned. As such there is a need for adequate and effective means by which they may be adopted, disseminated and implemented. In this regard, it is not enough that they be published – or explained – after they have been adopted.

While it is true that the COMELEC is an independent office and not a mere administrative agency under the Executive Department, rules which apply to the latter must also be deemed to similarly apply to the former, not as a matter of administrative convenience but as a dictate of due process. And this assumes greater significance considering the important and pivotal role that the COMELEC plays in the life of the nation. Thus, whatever might have been said in Commissioner of Internal Revenue v. Court of Appeals,^[58] should also apply mutatis mutandis to the COMELEC when it comes to promulgating rules and regulations which adversely affect, or impose a heavy and substantial burden on, the citizenry in a matter that implicates the very nature of government we have adopted:

It should be understandable that when an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance  is given the force and effect of law.

A reading of RMC 37–93, particularly considering the circumstances under which it has been issued, convinces us that the circular cannot be viewed simply as a corrective measure (revoking in the process the previous holdings of past Commissioners) or merely as construing Section 142(c)(1) of the NIRC, as amended, but has, in fact and most importantly, been made in order to place “Hope Luxury,” “Premium More” and “Champion” within  the  classification of  locally manufactured cigarettes bearing foreign brands and to thereby have them covered by RA 7654. Specifically, the new law would have its amendatory provisions applied to locally manufactured cigarettes which at the time of its effectivity were not so classified as bearing foreign brands. x x x In so doing, the BIR not simply interpreted the law; verily, it legislated under its quasi-legislative authority. The due observance of the requirements of notice, of hearing, and of publication should not have been then ignored.^[59]

For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution, specifically in regard to the new rule on aggregate airtime is declared defective and ineffectual.

7. Resolution No. 9615 does not impose
   an unreasonable burden on the
   broadcast industry

It is a basic postulate of due process, specifically in relation to its substantive component, that any governmental rule or regulation must be reasonable in its operations and its impositions. Any restrictions, as well as sanctions, must be reasonably related to the purpose or objective of the government in a manner that would not work unnecessary and unjustifiable burdens on the citizenry. Petitioner GMA assails certain requirements imposed on broadcast stations as unreasonable. It explained:

5.40  Petitioner GMA currently operates and monitors 21 FM and AM radio stations nationwide and 8 originating television stations (including its main transmitter in Quezon City) which are authorized to dechain national programs for airing and insertion of local content and advertisements.

5.41 In light of the New Rules wherein a candidate’s airtime minutes are applied on an aggregate basis and considering that said Rules declare it unlawful in Section 7(d) thereof for a radio, television station or other mass media to sell or give for free airtime to a candidate in excess of that allowed by law or by said New Rules:

“Section 7. Prohibited Forms of Election Propaganda – During the campaign period, it is unlawful:

xxx xxx xxx
(d) for any newspaper or publication, radio, television or cable television station, or other mass media, or any person making use of the mass media to sell  or to give free of charge print space or air time for campaign or election propaganda purposes to any candidate or party in excess of the size, duration or frequency authorized by law or these rules;

xxx xxx xxx”
(Emphasis supplied)

petitioner GMA submits that compliance with the New Rules in order to avoid administrative or criminal liability would be unfair, cruel and oppressive.

x x x x.

5.43  In the present situation wherein airtime minutes shall be shared by all television and radio stations, broadcast mass media organizations would surely encounter insurmountable difficulties in monitoring the airtime minutes spent by the numerous candidates for various elective positions, in real time.

5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that there are 372 television stations and 398 AM and 800 FM radio stations nationwide as of June 2012.  In addition, there are 1,113 cable TV providers authorized by the NTC to operate within the country as of the said date.

5.45  Given such numbers of broadcast entities and the necessity to monitor political advertisements pursuant to the New Rules, petitioner GMA estimates that monitoring television broadcasts of all authorized television station would involve 7,440 manhours per day.  To aggravate matters, since a candidate may also spend his/her broadcasting minutes on cable TV, additional 281,040 manhours per day would have to be spent in monitoring the various channels carried by cable TV throughout the Philippines.  As far as radio broadcasts (both AM and FM stations) are concerned, around 23,960 manhours per day would have to be devoted by petitioner GMA to obtain an accurate and timely determination of a political candidate’s remaining airtime minutes.  During the campaign period, petitioner GMA would have to spend an estimated 27,494,720 manhours in monitoring the election campaign commercials of the different candidates in the country.

5.46  In order to carry-out the obligations imposed by the New Rules, petitioner GMA further estimates that it would need to engage and train 39,055 additional persons on an eight-hour shift, and assign them all over the country to perform the required monitoring of radio, television and cable TV broadcasts.  In addition, it would likewise need to allot radio, television, recording equipment and computers, as well as telecommunications equipment, for this surveillance and monitoring exercise, thus imputing additional costs to the company.  Attached herewith are the computations explaining how the afore-said figures were derived and the conservative assumptions made by petitioner GMA in reaching said figures, as Annex “H”.

5.47 Needless to say, such time, manpower requirements, expense and effort would have to be replicated by each and every radio station to ensure that they have properly monitored around 33 national and more than 40,000 local candidates’ airtime minutes and thus, prevent any risk of administrative and criminal liability.^[60]

The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear more to be the result of a misappreciation of the real import of the regulation rather than a real and present threat to its broadcast activities. The Court is more in agreement with the respondent when it explained that:

The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit certain documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of the allowed limits. These documents include: (1) certified true copies of broadcast logs, certificates of performance, and certificates of acceptance, or other analogous record on specified dates (Section 9[d][3], Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and (2) copies of all contract for advertising, promoting or opposing any political party or the candidacy of any person for public office within five (5) days after its signing (Section 6.3, R.A. 9006).

* * * * *
[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real time. GMA grossly exaggerates when it claims that the non-existent duty would require them to hire and train an astounding additional 39,055 personnel working on eight-hour shifts all over the country.^[61]

The Court holds, accordingly, that, contrary to petitioners’ contention, the Reporting Requirement for the Comelec’s monitoring is reasonable.

Further, it is apropos to note that, pursuant to Resolution No. 9631,^[62] the respondent revised the third paragraph of Section 9 (a). As revised, the provision now reads:

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that parties and candidates were afforded equal opportunities to promote their candidacy, the media entity shall give prior notice to the COMELEC, through the appropriate Regional Election Director (RED), or in the case of the National Capital Region (NCR), the Education and Information Department (EID). If such prior notice is not feasible or practicable, the notice shall be sent within twenty-four (24) hours from the first broadcast or publication. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules. ^[63]

Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring requirement, contending, among others, that it constitutes prior restraint. The Court finds otherwise. Such a requirement is a reasonable means adopted by the COMELEC to ensure that parties and candidates are afforded equal opportunities to promote their respective candidacies. Unlike the restrictive aggregate-based airtime limits, the directive to give prior notice is not unduly burdensome and unreasonable, much less could it be characterized as prior restraint since there is no restriction on dissemination of information before broadcast.

Additionally, it is relevant to point out that in the original Resolution No. 9615, the paragraph in issue was worded in this wise:

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision. To determine whether the appearance or guesting in a program is bona fide, the broadcast stations or entities must show that (1) prior approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules. ^[64]

Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC had done – to modify the requirement from “prior approval” to “prior notice.” While the former may be suggestive of a censorial tone, thus inviting a charge of prior restraint, the latter is more in the nature of a content-neutral regulation designed to assist the poll body to undertake its job of ensuring fair elections without having to undertake any chore of approving or disapproving certain expressions.

Also, the right to reply provision is reasonable
In the same way that the Court finds the “prior notice” requirement as not constitutionally infirm, it similarly concludes that the “right to reply” provision is reasonable and consistent with the constitutional mandate.

Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:

SECTION 14. Right to Reply. – All registered political parties, party-list groups or coalitions and bona fide candidates shall have the right to reply to charges published or aired against them.  The reply shall be given publicity by the newspaper, television, and/or radio station which first printed or aired the charges with the same prominence or in the same page or section or in the same time slot as the first statement.

Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the right to reply by submitting within a non-extendible period of forty-eight hours from first broadcast or publication, a formal verified claim against the media outlet to the COMELEC, through the appropriate RED.  The claim shall include a detailed enumeration of the circumstances and occurrences which warrant the invocation of the right to reply and must be accompanied by supporting evidence, such a copy of the publication or recording of the television or radio broadcast, as the case may be.  If the supporting evidence is not yet available due to circumstances beyond the power of the claimant, the latter shall supplement his claim as soon as the supporting evidence becomes available, without delay on the part of the claimant. The claimant must likewise furnish a copy of the verified claim and its attachments to the media outlet concerned prior to the filing of the claim with the COMELEC.

The COMELEC, through the RED, shall view the verified claim within forty-eight (48) hours from receipt thereof, including supporting evidence, and if circumstances warrant, give notice to the media outlet involved for appropriate action, which shall, within forty-eight (48) hours, submit its comment, answer or response to the RED, explaining the action it has taken to address the claim.  The media outlet must likewise furnish a copy of the said comment, answer or response to the claimant invoking the right to reply.

Should the claimant insist that his/her right to reply was not addressed, he/she may file the appropriate petition and/or complaint before the Commission on Elections or its field offices, which shall be endorsed to the Clerk of Court.

The attack on the validity of the “right to reply” provision is primarily anchored on the alleged ground of prior restraint, specifically in so far as such a requirement may have a chilling effect on speech or of the freedom of the press.

Petitioner ABC states, inter alia:

5.145. A “conscious and detailed consideration” of the interplay of the relevant interests – the constitutional mandate granting candidates the right to reply and the inviolability of the constitutional freedom of expression, speech, and the press – will show that the Right to Reply, as provided for in the Assailed Resolution, is an impermissible restraint on these fundamental freedoms.

5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test) with respect to the present controversy will show that the Constitution does not tilt the balance in favor of the Right to Reply provision in the Assailed Resolution and the supposed governmental interest it attempts to further.^[65]

The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible elections, a task addressed to the COMELEC to provide for a right to reply.^[66] Given that express constitutional mandate, it could be seen that the Fundamental Law itself has weighed in on the balance to be struck between the freedom of the press and the right to reply. Accordingly, one is not merely to see the equation as purely between the press and the right to reply. Instead, the constitutionally-mandated desiderata of free, orderly, honest, peaceful, and credible elections would necessarily have to be factored in trying to see where the balance lies between press and the demands of a right-to-reply.

Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections.^[67]

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service. x x x^[68]

Relevant to this aspect are these passages from an American Supreme Court decision with regard to broadcasting, right to reply requirements, and the limitations on speech:

We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve “the public interest, convenience, and necessity.” Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L Ed 2d 371, 89 S Ct 1794.

The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U.S. 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the government's interest in the “well-being of its youth” and in supporting “parents' claim to authority in their own household” justified the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.^[69]

Given the foregoing considerations, the traditional notions of preferring speech and the press over so many other values of society do not readily lend itself to this particular matter. Instead, additional weight should be accorded on the constitutional directive to afford a right to reply. If there was no such mandate, then the submissions of petitioners may more easily commend themselves for this Court’s acceptance. But as noted above, this is not the case. Their arguments simplistically provide minimal importance to that constitutional command to the point of marginalizing its importance in the equation.

In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter must be properly viewed in context as being necessarily made to accommodate the imperatives of fairness by giving teeth and substance to the right to reply requirement.

WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of Resolution No. 9615, as amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and, therefore, NULL and VOID.  The constitutionality of the remaining provisions of Resolution No. 9615, as amended by Resolution No. 9631, is upheld and remain in full force and effect.

In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is hereby made PERMANENT.

SO ORDERED.

Velasco, Jr., Leonardo-De Castro, Bersamin, Del Castillo, Villarama, Jr., Perez, Reyes, Bernabe, and Jardeleza,^***** JJ., concur.
Sereno, C.J., on official leave.
Carpio,^** (Acting Chief Justice), see separate concurring opinion.
Brion,^*** J., I certify that J. Brion left his vote concurring in the result. (signed by J. Carpio)
Mendoza,^**** J., I certify that J. Mendoza lef his vote concurring with the ponencia. (signed by J. Carpio)
Leonen, J., see separate concurring opinion.

---

^** Designated Acting Justice per Special Order No. 1770 dated August 28, 2014.

^*** On official leave.

^**** On official leave.

^***** On leave.

^[1] Secretary of Justice v. Lantion, 397 Phil 423, 437 (2000). (Citation omitted)

^[2] Art. IX (C), Sec. 4 of the CONSTITUTION, provides:

The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

^[3] The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. (Art. II, Sec. 1, CONSTITUTION)

^[4] Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Art. V, Sec. 1, CONSTITUTION)

^[5] No law shall be passed abridging the freedom of speech, of  expression, or of the press, or the right of the people peaceably to assemble  and petition the Government for redress of grievances. (Art. III, Sec. 4, CONSTITUTION)

^[6] The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Art. III, Sec. 7, CONSTITUTION)

^[7] Resolution No. 7767 (promulgated on November 30, 2006) and Resolution No. 8758 (promulgated on February 4, 2010), respectively.

^[8] SECTION 7. Prohibited Forms of Election Propaganda.

x x x x

(d) For any newspaper or publication, radio, television or cable television station, or other mass media, or any person making use of the mass media to sell or give free of charge print space or airtime for campaign or election propaganda purposes to any candidate or party in excess of the size, duration or frequency authorized by law or these rules.

x x x x

The printing press, printer, or publisher who prints, reproduces or publishes said campaign materials, and the broadcaster, station manager, owner of the radio or television station, or owner or administrator of any website who airs or shows the political advertisements, without the required data or in violation of these rules shall be criminally liable with the candidate and, if applicable, further suffer the penalties of suspension or revocation of franchise or permit in accordance with law.

^[9] SECTION 9.  Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. – All parties and bona fide candidates shall have equal access to media time and space for their election propaganda during the campaign period subject to the following requirements and/or limitations:

a. Broadcast Election Propaganda

the duration of air time that a candidate, or party may use for their broadcast advertisements or election propaganda shall be, as follows:

For Candidates/
Registered Political
parties for a
National Elective
Position

Not more than a aggregate total of one hundred (120) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and one hundred eighty (180) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation.

For Candidates/
Registered Political
parties for a Local
Elective Position

Not more than an aggregate total of sixty (60) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and ninety (90) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation.

In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias, color motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned together in the broadcast election propaganda or advertisements, the length of time during which they appear or are being mentioned or promoted will be counted against the airtime limits allotted for the said candidates or parties and the cost of the said advertisement will likewise be considered as their expenditures, regardless of whoever paid for the advertisements or to whom the said advertisements were donated.

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision. To determine whether the appearance or guesting in a program is bona fide, the broadcast stations or entities must show that: (1) prior approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules.

Provided, further, that a copy of the broadcast advertisement contract be furnish to the Commission, thru the Education and Information Department, within five (5) days from contract signing.

x x x x

^[10] SECTION 14. Right to Reply.  –  All registered political parties, party-list groups or coalitions and bona fide candidates shall have the right to reply to charges published, or aired against them. The reply shall be given publicity, or aired against them. The reply shall be given publicity by the newspaper, television, and/or radio station which first printed or aired the charges with the same prominence or in the same page or section or in the same time slot as the first statement.

Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the right to reply by submitting within a non-extendible period of forty-eight hours from first broadcast or publications, a formal verified claim against the media outlet to the COMELEC through the appropriate RED. The claim shall include a detailed enumeration of the circumstances and include a detailed enumeration of the circumstances and occurrences which warrant the invocation of the right to reply and must be accompanied by supporting evidence, such as copy of the publication or recording of the television or radio broadcast, as the case may be. If the supporting evidence is not yet available due to circumstances beyond the power of the claimant, the latter shall supplement his claim as soon as the supporting evidence becomes available, without delay on the part of the claimant. The claimant must likewise furnish a copy of the verified claim and its attachments to the media out let concerned prior to the filing of the claim with the COMELEC.

The COMELEC, through the RED, shall review the verified claim within forty-eight (48) hours from receipt thereof, including supporting evidence, and if circumstances warrant, give notice to the media outlet involved for appropriate action, which shall, within forty-eight (48) hours, submit its comment, answer or response to the RED, explaining the action it has taken to address the claim. The media outlets must likewise furnish a copy invoking the right to reply.

Should the claimant insist that his/her reply was not addressed, he/she may file the appropriate petition and/or complaint before the commission on Elections or its field offices, which shall be endorsed to the Clerk of the Commission.

^[11] SECTION 1. Definitions. – As used in this Resolution:

x x x x

(4) The term “political advertisement” or “election propaganda” refers to any matter broadcasted, published, printed, displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of being associated with a candidate or party, and is intended to draw the attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a public office. In broadcast media, political advertisements may take the form of spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers.

Political advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary estimation.

^[12] SECTION 35. Election Offense. –  Any violation of RA 9006 and these Rules shall constitute an election offense punishable under the first and second paragraph of Section 264 of the Omnibus Election Code in addition to administrative liability, whenever applicable. Any aggrieved party may file a verified complaint for violation of these Rules with the Law Department of the Commission.

^[13] Rollo (G..R. No. 205357),  pp. 382-426.

^[14] Id. at  667-710.

^[15] Id. at 676.

^[16] Id. at 699.

^[17] Id. at 917-937.

^[18] C. THE COMMISSION ON ELECTIONS

x x x x

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

x x x x

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.

^[19] Supplemental Comment and Opposition, p. 17.

^[20] Rollo (G..R. No. 205357), p. 996

^[21] Rollo (G..R. No. 205374), pp. 378-385.

^[22] Id. at 386-395

^[23] Id. at 352-361.

^[24] Id. at 362-377.

^[25] Rollo (G..R. No. 206360), p. 86.

^[26] Rollo (G..R. No. 205374), pp. 402-413.

^[27] Dela Llana v. Chairperson, Commission on Audit, G.R. No. 180989, February 7, 2012, 665 SCRA 176, 184.

^[28] De Castro v. Judicial and Bar Council (JBC), G.R. No. 191032, G.R. No. 191057, A.M. No. 10-2-5-SC, G.R. No. 191149, March 17, 2010, 615 SCRA 666; Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 256 Phil. 777 (1989); Albano v. Reyes, 256 Phil. 718 (1989); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 246 Phil. 380 (1988); Legaspi v. Civil Service Commission, 234 Phil. 521 (1987); Tañada v. Tuvera, 220 Phil. 422 (1985).

^[29] G.R. No. 122846, January 20, 2009, 576 SCRA 416.

^[30] Id. at 429.

^[31] Id. at 430-432.

^[32] The pertinent portions of the Fair Election Act (R.A. No. 9006) provide:

SECTION 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:

x x x x

6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation; or

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party.

6.3. All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within five (5) days after its signing. In every case, it shall be signed by the donor, the candidate concerned or by the duly authorized representative of the political party.

6.4. No franchise or permit to operate a radio or television stations shall be granted or issued, suspended or cancelled during the election period.

In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending.

x x x x

^[33] RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS THE "FAIR ELECTION ACT", IN RELATION TO THE MAY 10, 2004 ELECTIONS AND SUBSEQUENT ELECTIONS.

^[34] See Section 13, 1, Resolution No. 6250.

^[35] RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS THE FAIR ELECTION ACT, IN RELATION TO THE MAY 14, 2007 SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS; See Section 13, 1.

^[36] RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS THE FAIR ELECTION PRACTICES ACT, IN RELATION TO THE MAY 10, 2010 SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS, AND SUBSEQUENT ELECTIONS; See Section 11 (a).

^[37] Emphasis supplied.

^[38] Motion for Leave to Intervene and to File and Admit the Herein Attached Petition-in-Intervention, pp. 15-20; rollo (G.R. No. 205357), pp. 347-352, citing TSN of the Comelec hearing on January 31, 2013, pp. 6-12. (Emphasis supplied)

^[39] Id. at 20. (Emphasis and underscoring in the original)

^[40] TSN, E.M. No.13-001 to 02, January 31, 2013, p. 8. (Emphasis supplied)

^[41] Motion for Leave to Intervene and to File and Admit the Herein Attached Petition-in-Intervention, p. 18;  rollo (G.R. No. 205357), p. 350.

^[42] Globe Telecom, Inc. v. National Telecommunications Commission, 479 Phil. 1, 33-34 (2004).

^[43] Motion for Leave to Intervene and to File and Admit the Herein Attached Petition-in-Intervention, pp. 21-24.; rollo (G..R. No. 205357), pp. 353-356.

^[44] Sec. 11. Prohibited Forms of Election Propaganda. - In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

x x x x

b. for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.

^[45] Journal of Senate, Session No. 92, 22-23 May 2000, rollo, (G.R. No. 205357), pp. 126-127.

^[46] Respondent's Comment and Opposition, pp. 11-12; rollo (G.R. No. 205357), pp. 392-393. (Emphasis in the original).

^[47] G.R. Nos. 179431-32 and 180445, June 22, 2010, 621 SCRA 385.

^[48] Id. at  411. (Citations omitted)

^[49] G.R. No. L-26534, November 28, 1969, 30 SCRA 498.

^[50] Villegas v. Subido, supra, at 510-511.

^[51] In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20 and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 437.

^[52] Buckley v. Valeo, 424 U.S. 1, 19-20 (1976).

^[53] Rollo (G.R. No. 205357), pp. 25-26. (Emphasis in the original)

^[54] Comment and Opposition, p. 15; id. at 396.

^[55] New York Times Co. v. United States, 403 U.S. 713, 717 (1971).

^[56] Moya v. Del Fierro, 69 Phil. 199, 204 (1939).

^[57] Williams v. Rhodes, 393 U.S. 23, 32 (1968).

^[58] 329 Phil. 987 (1996).

^[59] Commissioner of Internal Revenue v. Court of Appeals, supra, at 1007-1008. (Italics and boldface supplied)

^[60] Rollo (G.R. No. 205537), pp. 44-46. (Emphasis in the original)

^[61] Comment and Opposition, id. at 20.

^[62] Promulgated on February 1, 2013.

^[63] Emphasis supplied.

^[64] Emphasis and italics supplied.

^[65] Rollo (G.R. No. 205374), pp. 67-68.

^[66] Art. IX  (C), Sec. 4 of the CONSTITUTION, provides in part:

The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.” (Emphasis supplied.)

^[67] G.R. No. 132922, April 21, 1998, 289 SCRA 337.

^[68] Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, supra, at 349.

^[69] Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 748-750 (1978). (Emphases supplied)

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SEPARATE CONCURRING OPINION

CARPIO, Acting C.J.:

I join the ponencia’s holding striking down Section 9(a) of COMELEC Resolution No. 9615, as amended, (Resolution) for being violative of the Free Speech Clause of the Constitution. In addition, however, I vote to strike down Section 6.2 of the Fair Elections Act (Republic Act No. 9006 [RA 9006]) for similarly trenching on the freedoms of speech and of expression of candidates and political parties. I find this conclusion inevitable as Section 9(a) of the Resolution is merely the administrative rule implementing Section 6.2 of RA 9006.

Minimizing Election Spending the Intended Government Interest
in Capping Campaign Air Time
The COMELEC grounds its issuance of the Resolution not only on RA 9006 but also on two provisions of the Constitution,^[1] namely, Section 2(7) and Section 4, both of Article IX-C. Section 2(7) concerns the power of the COMELEC to “[r]ecommend to the Congress effective measures to minimize election spending, x x x.”^[2] On the other hand, Section 4  authorizes the COMELEC, during the election period, to “supervise or regulate the enjoyment and utilization  of all franchises x x x for the operation of x x x media of communication or information x x x.”^[3] Different constitutional values underpin these two provisions. Section 2(7) advances the government interest of keeping election spending to a minimum to maximize competition in electoral exercises while Section 4 ensures “equal opportunity, time and space, including reasonable, equal rates” to candidates and political parties during the campaign period.

In capping the broadcast advertising time of candidates and political parties, neither Congress nor the COMELEC (under Section 6.2 of RA 9006 and Section 9(a) of the Resolution, respectively) supervised or regulated the enjoyment and utilization of franchises of media outfits under Section 4, Article IX-C. Media firms continue to operate under their franchises free of restrictions notwithstanding the imposition of these air time caps.  Section 6.2 of RA 9006 and Section 9(a) of the Resolution do not approximate the rule barring media firms from “sell[ing] x x x print space or air time for campaign or other political purposes except to the Commission [on Elections],”^[4] a clear statutory implementation of Section 4.^[5] On the other hand, by regulating the length of broadcast advertising of candidates and political parties, a propaganda activity with correlative financial effect, Section 6.2 of RA 9006 and Section 9(a) of the Resolution enforce Section 2(7), Article IX-C. They are meant to advance the government interest of minimizing election spending.

Section 6.2 of RA 9006 and Section 9(a) of the Resolution
Restrict Free Speech and Free Expression Excessively
and Minimize Election Spending Arbitrarily

Section 6.2 of RA 9006 and Section 9(a) of the Resolution are content-neutral “time” regulations which do not reach the content of campaign speech but merely limit its cumulative broadcast “time” or length during the campaign period. Such content-neutral regulations are subjected to the intermediate, not heightened, level of scrutiny under the four-pronged O’Brien test, originally crafted by the U.S. Supreme Court and later adopted by this Court.^[6]  Under O’Brien, Section 6.2 of RA 9006 and Section 9(a) of the Resolution will pass constitutional muster “[1] [if they are] within the constitutional power of the Government; [2] if [they] further[] an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on the x x x freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.”^[7]

Section 6.2 of RA 9006 provides:

Equal Access to Media Time and Space. – x x x

x x x x

6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

x x x x

Section 9(a)  of the Resolution, implementing Section 6.2 for last year’s election, provides:

Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. -  All parties and bona fide candidates shall have equal access to media time and space for their election propaganda during the campaign period subject to the following requirements and/or limitations:

a. Broadcast Election Propaganda

The duration of air time that a candidate, or party may use for their broadcast advertisements or election propaganda shall be, as follows:

For Candidates/Registered Political parties for a National Elective Position [-] [n]ot more than an aggregate total of one hundred (120) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and one hundred eighty (180) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation.

For Candidates/Registered Political parties for a Local Elective Position [-] [n]ot more than an aggregate total of sixty (60) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and ninety (90) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation.

These provisions pass the first and third prongs of O’Brien. Undoubtedly, it was within the power of Congress to enact Section 6.2 of RA 9006 and of COMELEC to adopt Section 9(a) of the Resolution to enforce Section 2(7), Article IX-C of the Constitution.  Nor is there any question that the government interest of minimizing election spending under Section 2(7) of Article IX-C is unrelated to the suppression of free expression, concerned as it is in the non-speech government interest of maximizing competition in the political arena. As explained below, however, the capping of campaign air time by Section 6.2 of RA 9006 and Section 9(a) of the Resolution advances the state interest of  minimizing election spending arbitrarily and the incidental restriction on the freedoms of speech and expression these provisions impose is greater than is essential to the furtherance of such state interest, thus failing the second and fourth prongs of O’Brien.

Under Section 6.2 of RA 9006, the ban in broadcast campaign kicks-in once the limits of the air time caps are reached regardless of the amount of money actually spent by candidates or political parties. Section 9(a) of the Resolution tightens the regulatory noose by reckoning the air time caps for the entire campaign period cumulatively.^[8] By divorcing the amount of campaign air time logged by candidates and political parties during the campaign period from the amount of expenses they incur to do so, Section 6.2 of RA 9006 and Section 9(a) of the Resolution operate under the assumption that advertising rates in TV and radio are uniform, regardless of the broadcast coverage and time.

The fact of the matter is, advertising rates for each medium vastly vary depending on the extent and time of broadcast. Even if the statutorily mandated discounts are factored,^[9] a 30-second campaign ad placed in petitioner GMA, Inc.’s national TV station GMA-7 on a weekday evening primetime slot will cost a candidate or political party 96% more than a 30-second campaign ad placed by another candidate or party in any of GMA, Inc.’s provincial TV stations.^[10] If the ad is placed on a weekend non-primetime slot (afternoon), the price variation dips slightly to 93%.^[11] The rates charged by petitioner ABS-CBN Corporation reflect substantially the same price variance. A 30-second campaign ad placed in its national TV station ABS-CBN on a primetime slot will cost a candidate or political party 97% more than a 30-second campaign ad placed by another candidate or party in any of ABS-CBN Corporation’s mid-level local stations.^[12] For non-primetime placement, the price difference is 92%.^[13]

Substantially the same level of rate variance obtains in radio advertising. A 30-second campaign ad placed in petitioner GMA, Inc.’s DZBB AM radio station for national broadcast is, on average, 93% more expensive than a 30-second campaign ad placed by another candidate or political party aired at GMA, Inc.’s AM radio stations in Puerto Princesa City (DYSP), Iloilo City (DYSI), and Davao City (DXGM).^[14] For petitioner ABS-CBN Corporation, a 30-second campaign ad placed in its DZMM AM radio station for national broadcast on a primetime slot (club rate) is 91% more expensive than a 30-second campaign ad placed by another candidate or political party aired at ABS-CBN Corporation’s AM radio stations in Cebu City and Davao City.^[15]

The non-uniform rates in broadcast advertising mean that  candidate A for a national position who opts to place campaign ads only in strategic provincial TV and radio stations of the top two networks will have spent at least 90% less than candidate B for the same position who places campaign ads in national TV and radio stations of such networks for the same amount of time as candidate A. Nevertheless, as Section 6.2 of RA 9006 and Section 9(a) of the Resolution do not take broadcast rate variances into account, candidate A will have no choice but to stop airing campaign ads once he reaches the limits of the air time caps even though, compared to candidate B, his expenses for the ad placements are drastically lower. The government interest of minimizing election spending is furthered only in the case of candidate B but not with candidate A. On the other hand, the candidate A’s right to make known his candidacy and program of government to the voters – the heart of the freedoms of (political) speech and (political) expression guaranteed by the Constitution – is unduly restricted even though, compared to candidate B, his campaign expenses for airing ads are enormously lower. The system of value-neutral air time capping cuts deep into the core of  fundamental rights while advancing a state interest arbitrarily.

The same excessive rights restrictions and arbitrary advancement of public policy unfold for candidates at the local level. Metro Manila, unlike the other provinces, is not covered by “local” TV or radio stations. To broadcast a campaign ad on TV or radio, a candidate for any local position in Metro Manila will have to pay the rates for a national broadcast. The dilemma faced by Metro Manila candidates to either (a) inhibit from broadcasting their campaign ads to save money or (b) spend large amounts of campaign funds to air ads unduly restricts their expressive rights and at the same time negates the government interest of minimizing campaign spending.

The value-neutral capping system under Section 6.2 of RA 9006 and Section 9(a) of the Resolution also operates under the false assumption that candidates at the national and local levels are subject to the same general campaign spending limits, thus the uniform air time caps imposed for each category of candidates. Under Batas Pambansa Blg. 881 (BP 881), as amended by Section 13 of Republic Act No. 7166, however,  candidates’ spending limits are computed based on the size of the voting population, with the rates proportional to the size of a candidate’s constituency.^[16] Because all local candidates under  Section 6.2 of RA 9006 and Section 9(a) of the Resolution are allotted the same air time, a candidate for mayor in Catbalogan City (which had 54,459  registered voters in 2010) has the same  60 minutes of TV ad time and 90 minutes of radio ad time as a candidate for mayor in Davao City (which had 909,442 registered voters in 2010) even though their spending limits are, under the 2010 census, P163,377 and P2,728,326, respectively (at P3 per registered voter). As ad rates in Davao-based radio and TV stations are relatively low, it could happen that the Davao City mayoral candidate will have consumed her allotted campaign air time while keeping clear of the maximum spending limit, yet, under Section 6.2 of RA 9006 and Section 9(a) of the Resolution she has to stop airing campaign ads.

Section 6.2 of RA 9006 and Section 9(a) of the Resolution
Not Reasonably Related to the State Interest of Minimizing
Election Spending
Even if we subject Section 6.2 of RA 9006 and Section 9(a) of the Resolution to the lowest level of scrutiny under the rational basis test, they still fail to withstand analysis. Rules survive this minimal level of scrutiny if the means drawn by Congress or administrative bodies are reasonably related to a legitimate state interest. The government interest Section 6.2 of RA 9006 and Section 9(a) of the Resolution are meant to advance is the minimization of campaign spending. The means Congress and the COMELEC adopted to do so was to place uniform campaign air caps for national and local candidates, without taking into account the amount of money spent by candidates and political parties to air campaign ads. By ignoring the amount of broadcasting expenses incurred by candidates and political parties, Section 6.2 of RA 9006 and Section 9(a) of the Resolution lack any rational relation to the state policy of minimizing election spending under Section 2(7), Article IX-C of the Constitution. Their enforcement will only result in substantial variation in election spending among national and local candidates for airing campaign ads.

Legislative measures aimed at limiting campaign air time to advance the state policy of minimizing campaign spending under Section 2(7), Article IX-C of the Constitution must necessarily be pegged to spending caps for campaign broadcasting. Such caps, in turn, will depend on the size of the voting population for each category of candidates (national or local), consistent with the existing method for capping general campaign spending under BP 881, as amended. The monetary limit must be set at say P2.00 per registered voter for local candidates and P4.00 per registered voter for national candidates. Once the total monetary limits are reached, the ban on broadcast advertising takes effect, regardless of the amount of air time logged. This scheme grants to candidates and political parties greater space for the exercise of communicative freedoms while, at the same time, allows the state to uniformly flag profligate campaigns.

Accordingly, I vote to GRANT the petitions in part and DECLARE Section 9(a) of COMELEC Resolution No. 9615 dated 15 January 2013, as amended by Resolution No. 9631 dated 1 February 2013, and Section 6.2 of Republic Act No. 9006 UNCONSTITUTIONAL for being violative of Section 4, Article III of the 1987 Constitution.

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^[1] Decision, pp. 8, 13.

^[2] The provision reads in full: “Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.”

^[3] The provision reads in full: “The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.”

^[4] Section 11(b), Republic Act No. 6646, repealed by Section 14 of RA 9006.

^[5] Osmeña v. COMELEC, 351 Phil. 692, 708 (1998).

^[6] Considered as the “canonical” standard of review for content-neutral regulations, the test is eponymously named after US v. O’Brien, 391 U.S. 367 (1968). This Court applied O’Brien in Osmeña v. COMELEC,  id. and Social Weather Station v. COMELEC, 409 Phil. 571 (2001). In contrast, content-based regulations are subjected to heightened scrutiny (for the reasons underlying such strict scrutiny and its application in Philippine jurisprudence, see Osmeña v. COMELEC, id. at 717-719).

^[7] Social Weather Station v. Commission on Elections, id. at 587-588, citing US v. O’Brien, id. at 377.

^[8] According to petitioner  GMA, Inc., this leaves a candidate or political party only 27.3 seconds of campaign broadcast time per day (Decision, p. 41). Under the regulations issued by the COMELEC implementing Section 6.2 of RA 9006 for the  2007 and 2010 elections, the caps were reckoned based on the length of advertising time logged by each candidate or political party at every TV or radio station.

^[9] Under Section 11 of RA 9006 (“Rates for Political Propaganda. – During the election period, media outlets shall charge registered political parties and bona fide candidates a discounted rate of thirty percent (30%) for television, twenty percent (20%) for radio and ten per cent (10%) for print over the average rates charged during the first three quarters of the calendar year preceding the elections.”)

^[10] Based on petitioner GMA, Inc.’s rate card for 2013 (undiscounted), a 30-second national primetime ad costs P695,500 while its regional counterpart costs P27,500 (with the 30% statutory discount, the rates are P487,000 and P19,250, respectively).

^[11] With the national ad costing P425,500 and the regional rate constant.

^[12] Based on petitioner ABS-CBN Corp.’s rate card for 2013 (undiscounted), a 30-second national primetime ad costs P824,374 while its mid-level provincial rate (selected areas) for the same ad is P24,800 (with the 30% statutory discount, the rates are P577,061.80 and P19,360, respectively). The upper-level provincial rate is P38,500 (Cebu) while the lower-level rate is P7,470 (selected areas).

^[13] With the national ad costing P312,264 (with 30% statutory discount, P218,584.80)  and the mid- level provincial rate constant.

^[14] Based on petitioner GMA, Inc.’s rate card for 2013 (undiscounted), DZBB’s rate is P70,000 while those for DYSP (Puerto Princesa), DYSI (Iloilo) and DXGM (Davao) are P2,100, P5,000 and P6,900, respectively. With the statutory discount of 20%, the rates for  DZBB, DYSP, DYSI and DXGM are P56,000, P1,680, P4,000 and P5,520, respectively. If the rate (undiscounted) for Cebu’s DYSS (P22,500) is taken into account, the average price variation is 87%.

^[15] Based on petitioner ABS-CBN Corp.’s rate card for 2013 (undiscounted), DZMM’s rate is P67,666 (club rate, primetime) while rates for Cebu City and Davao City are the same at P6,570. The rate (undiscounted) for its Palawan AM station is lower at P3,290, increasing the price difference with the national primetime, club rate to 95%.

^[16] Under Section 100 of Batas Pambansa Blg. 881 (BP 881), as amended by Section 13 of Republic Act No. 7166 which provides: “Authorized Expenses of Candidates and Political Parties. - The agreement amount that a candidate or registered political party may spend for election campaign shall be as follows: (a) For candidates. - Ten pesos (P10.00) for President and Vice-President; and for other candidates Three Pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy: Provided, That a candidate without any political party and without support from any political party may be allowed to spend Five Pesos (P5.00) for every such voter; and (b) For political parties. - Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates.”

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SEPARATE CONCURRING OPINION

BRION, J.:

I concur in the result.  My reasons for this position are fully explained below.

The Case
The ponencia struck down Commission on Elections (Comelec) Resolution No. 9615, as amended by Comelec Resolution No. 9631. These resolutions changed the basis of the computation of the allowable airtime limits within which candidates or registered political parties may place their campaign advertisements on radio or television, as provided under Republic Act (RA) No. 9006 or the Fair Elections Act of 2001. The pertinent portion of this law, Section 6.2, provides:

6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

In the 2004,^[1] 2007 and 2010 elections, the Comelec interpreted these provisions to mean that the specified airtime limits apply on a “per (radio/tv) station” basis. For a national candidate, entitlement to airtime translated to television campaign time of 120 minutes for every available television station and 120 minutes for every available radio station.

For the 2013 elections, the Comelec changed its interpretation, this time interpreting the law in the manner it did in 2001.^[2]  Instead of computing the airtime limits on a per station basis, the Comelec under the challenged resolutions, would now compute the airtime limits on an “aggregate total basis.” This translated to very much lesser airtime for campaign advertisements that candidates and registered political parties could place.

According to the ponencia, the Comelec’s new interpretation is legally flawed for the following reasons:

First, the Comelec failed to come up with a reasonable basis and explanation for the interpretative change of the airtime limits under RA No. 9006. The Comelec, through Chairman Sixto Brillantes, explained that the new interpretation was prompted by the need to level the playing field among the candidates. This explanation apparently simply assumed that the previous interpretation no longer addressed the 2013 needs, although no supporting basis in evidence and reason was given to support this assumption.

Second, RA No. 9006 on its face does not require that the maximum allowable airtime should be on an “aggregate total” basis.  This finds support from the Sponsorship Speech of Senator Raul Roco on RA No. 9006.  Also, the fact that RA No. 9006 repealed RA No. 6646’s (or the Electoral Reforms Law of 1987) provision (that prohibits radio broadcasting or television station from giving or donating air time for campaign purposes except through the Comelec) reinforces the Comelec’s earlier and consistent interpretation that the airtime limits apply on a “per station” basis.

Third, Comelec Resolution No. 9615 infringes on the people’s right to be duly informed about the candidates and the issues, citing Bantay Republic Act or BA-RA 7941 v. Commission on Elections.^[3]

Fourth, Comelec Resolution No. 9615 violates the candidates’ freedom of speech because it restricts their ability to reach out to a larger audience.

Fifth, Comelec Resolution No. 9615 violates the people’s right to suffrage.

Sixth, the lack of a prior notice and hearing is fatal to the validity of Comelec Resolution No. 9615. The Comelec should have given petitioners prior notice and opportunity for hearing before adopting Comelec Resolution No. 9615 because of the radical change it introduced. Citing Commissioner of Internal Revenue v. Court of Appeals,^[4] prior notice and hearing is required if an administrative issuance “substantially adds to or increases the burden of those governed.”

Discussion
A. Grave Abuse of Discretion Issue

a. Due Process and Basic Fairness

I agree with the ponencia that basic fairness demands that after consistently adopting and using an interpretation of a legal provision, any subsequent change in interpretation that the Comelec would adopt and that would seriously impact on both the conduct and result of the elections should have reasonable basis and be adequately explained to those directly affected.

The petitioner owners/operators of radio/television networks are directly affected by the Comelec’s new interpretation since they normally sell their airtime to candidates and registered political parties who buy airtime to conduct their campaign and as part of their campaign strategy.  With respect to the candidates and as the Comelec very well knows, the effectiveness of their campaign strategy spells the difference between winning and losing in Philippine elections. The Comelec’s knowledge of this basic fact limits the discretion that it otherwise would normally and broadly have as the constitutional body tasked with the enforcement and administration of our election laws.^[5]

Interestingly, in 2001 (the year RA No. 9006 was enacted), the Comelec initially interpreted the airtime limits under RA No. 9006 to be applicable on an aggregate total basis in the manner the assailed Comelec Resolution No. 9615 now does.  At the instance of petitioner Kapisanan ng Mga Brodkaster sa Pilipinas (KBP), the Comelec (through its Election and Information Department Director) then held conferences to discuss the present petitioners’ proposed changes.

On February 18, 2004, the Comelec adopted petitioner KBP’s proposal. Since then and until the 2010 elections, the Comelec interpreted the equality-of-access thrust of the law to mean that a national candidate or a registered political party could avail of up to 120 minutes and 180 minutes for each broadcast radio station and television’s airtime, respectively, for campaign advertisements.  This interpretation was only changed for the 2013 elections under the assailed Comelec Resolution No. 9615.

Under these facts, even common sense demands that the Comelec explain to the petitioners the justification for the change, i.e., why the previous interpretation would no longer be in tune with the equality-of-access thrust of the law that remains unchanged in all these elections.  This is particularly true for the current petitioners who were the very same parties who actually and successfully prodded the Comelec to reconsider its 2001 interpretation.

As the ponencia observed, in the hearing conducted by the Comelec after the promulgation of Comelec Resolution No. 9615, the Comelec Chairman offered the petitioners no reasonable explanation; he only relied on the Comelec’s “prerogative to amplify” under RA No. 9006 and on the blanket invocation of the need to level the playing field among candidates.

While the Court has acknowledged the Comelec’s wide discretion in adopting means to carry out its mandate of ensuring free, orderly, and honest elections, this discretion cannot be unlimited and must necessarily be within the bounds of the law^[6] under the prevailing rule of law regime in our country.  The legal limitations include those imposed by the fundamental law, among them, the right to due process where governmental action has been substantively unreasonable or its procedures and processes are unduly harsh.

The Comelec’s failure to sufficiently explain the basis for the change of interpretation it decreed under Resolution No. 9615, in my view, falls within this limitation.  Even without going into the niceties and intricacies of legal reasoning, basic fairness^[7] demands that the Comelec provides a reasonable justification, considering particularly the Comelec’s own knowledge of the dynamics of campaign strategy and the influence of the radio and television as medium of communication.

b. Lack of prior notice and hearing

I similarly agree with the ponencia that the lack of prior notice and hearing is fatal to the validity of Comelec Resolution No. 9615.  Parenthethically, the need for prior notice and hearing actually supports the conclusion that the Comelec’s discretion is not unbridled. Giving the petitioners prior opportunity to be heard before adopting a new interpretation would have allowed the Comelec to make a reasonable evaluation of the merits and demerits of the 2004-2010 interpretation of airtime limits and the needs to satisfy the demands of the 2013 elections.

In my discussions below, I shall supplement the ponencia’s observations (which cited the case Commissioner of Internal Revenue v. Court of Appeals)^[8] that prior notice and hearing are required if an administrative issuance “substantially adds to or increases the burden of those governed”. I do so based on my own assessment that the validity or invalidity of the assailed Comelec Resolution essentially rises or falls on the Comelec’s compliance with the legal concept of due process or, at the very least, the common notion of fairness.  In the latter case, the prevailing circumstances and the interests at stake have collectively given rise to the need to observe basic fairness.

1. The Comelec’s powers

As an administrative agency, the powers and functions of the Comelec may be classified into quasi-legislative and quasi-judicial.

The quasi-judicial power of the Comelec embraces the power to resolve controversies arising from the enforcement of election laws, and to be the sole judge of all pre-proclamation controversies; and of all contests relating to the elections, returns, and qualifications. In the exercise of quasi-judicial power, the Comelec must necessarily ascertain the existence of facts, hold hearings to secure or confirm these facts, weigh the presented evidence, and draw conclusions from them as basis for its action and exercise of discretion that is essentially judicial in character.^[9] When exercising this power, due process requires that prior notice and hearing must be observed.^[10]

The remedy against an improvident exercise of the Comelec’s quasi-judicial power is provided under Article IX-A, Section 7,^[11] in relation with Article IX-C, Section 3 of the Constitution^[12] and with Rule 64 of the Rules of Court.

On the other hand, the Comelec’s quasi-legislative power, which it may exercise hand in hand with its power to administer and enforce election laws, refers to its power to issue rules and regulations to implement these election laws. In the exercise of quasi-legislative power, administrative law distinguishes between an administrative rule or regulation (legislative rule), on the one hand, and an administrative interpretation of a law whose enforcement is entrusted to an administrative body (interpretative rule), on the other.^[13]

Legislative rules are in the nature of subordinate legislation and, as this label connotes, are designed to implement a law or primary legislation by providing the details of the law. They usually implement existing law, imposing general, extra-statutory obligations pursuant to the authority properly delegated by Congress and reflect and effect a change in existing law or policy that affects individual rights and obligations.^[14]

A subset of legislative rules are interpretative rules that are intended to interpret, clarify or explain existing statutory regulations under which the administrative body operates. Their purpose or objective is merely to construe the administered statute without regard to any particular person or entity that may be covered by the law under construction or interpretation.^[15] Understood along these lines, it becomes easy to grasp that the requirements of prior notice and hearing, unless expressly required by legislation or by the rules, do not apply to them.^[16]

2. The requirement of notice and hearing
   in the exercise of quasi-legislative power

a.  Statutory Requirement for Notice and Hearing.

In earlier cases, the Court observed that the issuance of rules and regulations in the exercise of an administrative agency’s quasi-legislative or rule making power generally does not require prior notice and hearing^[17] except if the law provides otherwise.^[18] The requirement for an opportunity to be heard under the exception is provided for under Book VII, Chapter 2, Section 9 of Executive Order (EO) No. 292 (the Administrative Code of 1987). This provision reads:

Section 9. Public Participation. –

(1) If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule.

A patent characteristic of this provision is its permissive language in requiring notice and the opportunity to be heard.  The non-mandatory nature of a prior hearing arises from the nature of the proceedings where quasi-legislative power is exercised: the proceedings do not involve the determination of past events or facts that would otherwise have to be ascertained as basis of an agency’s action and discretion. On the contrary, the proceedings are intended to govern future conduct. Accordingly, the requirement of prior notice and hearing is not indispensable for the validity of the exercise of the power.^[19]

It is in this light that the pronouncement in CIR case that the ponencia cited, should be understood.

In CIR case, the CIR issued a memorandum circular that classified certain brands of cigarettes of a particular manufacturer under a particular category. The classification resulted in subjecting the cigarette manufacturer to higher tax rates imposed under a new law (that had yet to take effect when the memorandum circular was issued) without affording the cigarette manufacturer the benefit of any prior notice and hearing.

In ruling in the manufacturer’s favor, the Court immediately assumed that the CIR was exercising its quasi-legislative power when it issued the memorandum circular^[20] and quoted a portion of Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary^[21] as follows:

x x x a legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof.  In the same way that laws must have the benefit of public hearing, it is generally required that before a legislative rule is adopted there must be hearing x x x (italics in the original).

On the basis of this assumption and the Misamis Oriental ruling, the Court held that while an interpretative rule does not require prior notice and hearing (since “it gives no real consequence more than what the law itself has already prescribed”), “an administrative rule x x x that substantially adds to or increases the burden of those governed [requires] the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law.”

While the Court’s quoted dictum in the case is sound, the facts of the case however reveal that the CIR was not actually wearing its quasi-legislative hat when it made the disputed classification; it was in fact exercising its quasi-judicial power when it issued the memorandum circular.^[22]  As discussed elsewhere in this Opinion, prior notice and hearing was in fact indispensable.

This apparent disconnect, however, is rendered academic by the directory requirement of prior notice and hearing under EO No. 292 quoted above: when an agency issues a legislative rule, the issue of whether compliance with the notice and hearing requirement was “practicable” under the circumstances might depend on the extent of the burden or the adverse effect that the new legislative rule imposes on those who were not previously heard.  Effectively, this is the rule that assumes materiality in the case, not the misdirected ruling in the cited CIR case.

In the present case, the requirement of prior notice and opportunity to be heard proceeds from the nature of Comelec Resolution No. 9615 as a legislative rule^[23] whose new provision on airtime limits directly impacts on the petitioners as a distinct group among the several actors in the electoral process.

On the one hand, the revenues that the petitioners may potentially lose under the Comelec’s “restrictive” interpretation indeed have adverse effects on the petitioners’ operations. On the other hand, substantially limiting the allowable airtime advertisements of candidates would have serious repercussions on their campaign activities and strategies, and ultimately on their ability to win in the elections. These are serious considerations that make prior notice and hearing in the present case more than “practicable.”

Still more important than these individual considerations is the perceived adverse effect, whether true or not, of the reduction of the airtime limits under Comelec Resolution No. 9615 on the electorate.

We should not also lose sight of the Comelec’s equally noble objective of leveling the playing the field between and among candidates, which objective is itself constitutionally recognized.^[24] In addition, as one Comelec Commissioner remarked,^[25] the restrictive interpretation was intended to encourage candidates to comply with an equally relevant statutory regulation on campaign finance.^[26]

At the center of these competing considerations that directly impact on the election system and in the electoral process as a whole is the Comelec. Given its constitutional mandate to enforce and administer all election laws and regulations with the objective of holding free, orderly, honest, peaceful, and credible elections,^[27] these considerations, in my view, compulsorily required the Comelec to give the petitioners and all those concerned reasonable opportunity for discourse and reasonable basis and explanation for its conclusion.

In other words, while the petitioners do not have any absolutely demandable right to notice and hearing in the Comelec’s promulgation of a legislative rule, the weight and seriousness of the considerations underlying the change in implementing the airtime limit rule, required a more circumspect and sensitive exercise of discretion by the Comelec, in fact, the duty to be fair that opens the door to due process considerations.  The change touched on very basic individual, societal and even constitutional values and considerations so that the Comelec’s failure to notify and hear all the concerned parties amounted to a due process violation amounting to grave abuse in the exercise of its discretion in interpreting the laws and rules it implements.

While the Comelec admittedly conducted a hearing after promulgating Comelec Resolution No. 9615, this belated remedy does not at all cure the resolution’s invalidity.

The requirement of prior notice and hearing is independently meant to reinforce the requirement of reasonable basis and adequate explanation of the Comelec’s action as part of the petitioners’ due process rights.  To state the obvious, in the election setting that Comelec Resolution No. 9615 governed, time is of the essence so that the lack of due process might have irremediably affected the concerned parties by the time the post-promulgation hearing was called. Additionally and more importantly, concluding that a post-promulgation hearing would suffice in Comelec Resolution No. 9615 setting would have signified the lack of limitation, even temporarily, on the Comelec’s otherwise broad discretion.  In the fine balancing that elections require, such remedial actions would not suffice.

As specifically applied to the realities of the present case, the requirement of prior notice and hearing is an opportunity for both the petitioners and the Comelec to support their respective positions on the proper interpretation of the airtime limits under RA No. 9006. This is especially true when we consider that under RA No. 9006, the Comelec is expressly empowered to “amplify” the guidelines provided in the law, among them, the provision on airtime limits. As will be discussed later in this Opinion, the Comelec’s express power to “amplify” supports the conclusion I reached.

Based on these considerations, the ponencia could very well have ended further consideration of other issues as the violation of due process already serves as ample basis to support the conclusion to invalidate Comelec Resolution No. 9615.  Instead, the ponencia proceeded to consider other constitutional grounds that, in my view, were not then appropriate for resolution.

B. Judicial Power and Lis Mota

When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are present: (1) the existence of an actual and appropriate case; (2) the existence of personal and substantial interest on the part of the party raising the constitutional question; (3) recourse to judicial review is made at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.^[28]

The thrust of my discussion focuses on the last requisite.

Lis mota literally means “the cause of the suit or action.” This last requisite of judicial review is simply an offshoot of the presumption of validity accorded to executive and legislative acts of our co-equal branches and of the independent constitutional bodies. Ultimately, it is rooted in the principle of separation of powers.

Given this presumption of validity, the petitioner who claims otherwise carries the initial burden of showing that the case cannot be resolved unless the constitutional question he raised is determined by the Court.^[29]  From the Court’s perspective, it must avoid resolving constitutional issues unless their resolution is absolutely necessary and clearly unavoidable.

By holding that the Comelec must have reasonable basis for changing their interpretation of the airtime limits under RA No. 9006 and that, impliedly its absence in the present case constitutes a violation of the petitioners’ right to due process, the ponencia in effect recognized the Comelec’s duty under the circumstances to provide for a reasonable basis for its action, as well as its competence to adequately explain them as the constitutional body tasked to enforce and administer all elections laws and regulations. This recognition is consistent with the Court’s similar recognition that the Comelec possesses wide latitude of discretion in adopting means to carry out its mandate of ensuring free, orderly, and honest elections , but subject to the limitation that the means so adopted are not illegal or do not constitute grave abuse of discretion.^[30]

Given this recognition and in light of the nullity of Comelec Resolution No. 9615, the Court, for its part, should also recognize that it should not preempt the Comelec from later on establishing or attempting to establish the bases for a new interpretation that is not precluded on other constitutional grounds.  The Comelec possesses ample authority to so act under the provision that airtime limits, among others, “may be amplified on by the Comelec.”

I choose to part with the ponencia at this point as I believe that with the due process and fairness grounds firmly established, this Court should refrain from touching on other constitutional grounds, particularly on a matter as weighty as the one before us, unless we can adequately explain and support our dispositions.  The oft-repeated dictum in constitutional decision-making is the exercise of judicial restraint.^[31]  The Court will not or should not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.  This, to my mind, is the dictum most particularly fit for the current legal situation before us, as I will explain below.

C. The ponencia’s bases for nullifying
Comelec Resolution No. 9615

Based on its second to fifth grounds, the ponencia suggests that even if the Comelec came up with a reasonable and adequate explanation for its new interpretation of the airtime limits under RA No. 9006, the Comelec resolution is doomed to fail because, first, it does not find support under RA No. 9006 (the statutory reason); and, second, it violates several constitutional rights (the constitutional reason).

I disagree with these cited grounds.

1. Statutory reason

RA No. 9006 provides:

Section 6. Equal Access to Media Time and Space. – All registered parties and bona fide candidates shall have equal access to media time and space. The following guidelines may be amplified on by the COMELEC.

x x x x

6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party.

6.3. All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within five (5) days after its signing. In every case, it shall be signed by the donor, the candidate concerned or by the duly authorized representative of the political party.

x x x x
In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar or the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending.

I raise three observations with respect to the ponencia’s statutory reason.

First, the ponencia has not explained the implication of the Comelec’s power to “amplify” under Section 6 of RA No. 9006 in relation with Comelec Resolution No. 9615.

In light of the Comelec’s power to “amplify,” I cannot support the ponencia’s simplistic statement that “the law, on its face, does not justify a conclusion that the allowable airtime should be based on the totality of possible broadcast in all television or radio stations.” In fact, even a superficial reading of RA No. 9006 reveals that the law is silent on the basis of computing the allowable airtime limits. The ponencia should have at the very least explained the law’s silence in relation with the Comelec’s power to amplify.

Contrary to the ponencia’s observation, nothing is evident from the Sponsorship Speech of Senator Raul Roco on RA No. 9006 (that the ponencia cited) to support the conclusion that the Comelec’s interpretation is unwarranted under RA No. 9006.

Second, the fact that RA No. 9006 repealed Section 11(b) [the political advertisement ban] of RA No. 6646 has no bearing on the issue of the correct interpretation of the airtime limits under RA No. 9006.  The thrust of RA No. 9006 involves a qualified, not an absolute, right to politically advertise, whether airtime limits are based on a per station or an aggregate total basis.

Third, the House and Senate bills that eventually became RA No. 9006 originally contained the phrase “per day per station” as the basis for the computation of the allowed airtime limits. According to the Comelec, the dropping of this phrase in the law reveals the intent of Congress to compute the airtime limits on an aggregate total or per candidate basis.

In rejecting the Comelec’s argument, the ponencia, again, oddly stated that this change in language “meant that the computation must not be based on a ‘per day’ basis,” completely ignoring the additional “per station” qualifier that is also no longer found in the present law.

These three considerations, in my view, collectively point to the inadequacy of the ponencia’s reasons in striking down Comelec Resolution No. 9615.

i. Statutory Validity of a Regulation

The Comelec’s power to “amplify” on the airtime limits would have been the key in determining whether the Comelec overstepped its limitations in the exercise of its quasi-legislative power.  For a legislative rule to be valid, all that is required is that the regulation should be germane (i.e., appropriate and relevant) to the objects and purposes of the law, and that the regulation should not contradict, but should conform with, the standards prescribed by the law.^[32]

RA No. 9006 simply provides that “each bona fide [national] candidate or registered political party” is “entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement.”

A very basic rule in statutory construction is that words (which make up a sentence) should be construed in their ordinary and usual meaning^[33] and that legislative record are powerless to vary the terms of the statute when the wordings of the statute is otherwise clear.^[34]

In the present case, the word “each” (defined as everyone in a group)^[35] pertains to the candidate and registered political parties themselves; the law then proceeds to define the limits of entitlement of “each” to radio and television advertisement to a certain number of minutes.

The provision’s distinct and unambiguous wording shows that the allowable number of minutes for advertisement in radio and television refers to “each” of the candidates and registered political parties. Under the presently plain and clear wordings of the law, the allowable number of minutes does not pertain to the radio and television station themselves. Accordingly, in promulgating Comelec Resolution No. 9615, it cannot be said that the Comelec “went beyond its legal mandate” because the Comelec’s interpretation finds plain textual support from the law itself.

Pursuant to Section 4, Article IX-C of the 1987 Constitution, Congress enacted RA No. 9006 and declared as a matter of state principle that during the election period the State may supervise and regulate “the enjoyment or utilization of all franchises or permits for the operation of media of communication or information.” The avowed purpose is to “guarantee or ensure equal opportunity for public service, including access to media time and space for public information campaigns and fora among candidates.”^[36] After Congress enacted RA No. 9006, which by its terms textually support Comelec Resolution No. 9615, it cannot be said that the resolution is not germane to the purpose of the law or that it is inconsistent with the law itself.

ii.  The Power to Amplify

If only the ponencia considered Congress’ express intent to grant the Comelec the power to “amplify” on Section 6.2 of RA No. 9006, then it would not have been blinded by its apprehensions that the Comelec’s resolution would “undermine” and “frustrate” “political exercise as an interactive process.”

More than anyone else perhaps, Congress knows that weighty considerations underlie the regulation of the airtime limits of candidates and of registered political parties. As earlier discussed, these considerations include the revenues that the petitioners may potentially and directly lose under the Comelec’s “restrictive” interpretation, and the Comelec resolution’s indirect effect on the petitioners’ freedom of the press; the serious repercussions of restrictive airtime limits on candidates’ campaign strategy and their ability to win in the elections; the perceived adverse (and/or beneficial) effect, whether true or not, of the reduction of the airtime limits under the Comelec resolution on the electorate since the elections are considered the highest form of exercise of democracy; the noble objective of leveling the playing field between and among candidates, which objective is itself constitutionally recognized;^[37] and the equally important and relevant state objective of regulating campaign finance.^[38]

Since the Comelec is the body tasked by the Constitution with the enforcement and supervision of all election related laws with the power to supervise or regulate the enjoyment of franchises or permits for the operation of media of communication or information, Congress found the Comelec to be the competent body to determine, within the limits provided by Congress, the more appropriate regulation in an ever changing political landscape.

Reading RA No. 9006 and all the above considerations together, it is not difficult to grasp that the 180 and 120 minute limitations for each candidate under the law should be understood as the maximum statutory threshold for campaign advertisement. This is by the express provision of RA No. 9006.  The Comelec’s on a “per station” interpretation (effective from 2004 until 2010), on the other hand, may be considered as another maximum limit for campaign advertisement, based on the Comelec’s authority to “amplify.”  This Comelec ruling, standing as presented, should be valid for as long as it does not exceed the statutory ceiling on a per station basis.

This interpretation, in my view, takes into account all the competing considerations that the Comelec, as the proper body, has the primary authority to judiciously weigh and consider.

To put this examination of Comelec Resolution No. 9615 in its proper context, however, I hark back to my previous statement on judicial restraint:  find no clear and urgent necessity now to resolve the constitutional issues discussed in the ponencia, more especially given the manner that these issues were approached.  I only discuss the constitutional issues to point out my concurrence and divergence from the ponencia.  What we should hold, and I support the ponencia on this point, is that Comelec Resolution No. 9615 now stands nullified on due process grounds.

2. Constitutional Reason

i.  Right to Information

With due respect, I observe that the ponencia has not fully explained how Comelec Resolution No. 9615 violates the people’s right to be duly informed about the candidates and issues, and the people’s right to suffrage.  Bantay Republic Act or BA-RA 7941 v. Commission on Elections,^[39] which the ponencia cited, is inapplicable because that case involves an absolute refusal by the Comelec to divulge the names of nominees in the party-list election. In the present case, the Comelec is not prohibiting the candidates from placing their campaign advertisements on the air but is simply limiting the quantity of the airtime limits they may use. As previously discussed, the basis for its action and interpretation is textually found in RA No. 9006 itself.

ii. Freedom of speech

a. Candidates and political parties

The ponencia also claims that Comelec Resolution No. 9615 violates the candidates’ freedom of speech because it restricts their ability to reach out to a larger audience. While freedom of speech is indeed a constitutionally protected right, the ponencia failed to consider that the Constitution itself expressly provides for a limitation to the enjoyment of this right during the election period. Article IX-C, Section 4 of the Constitution reads:

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

In National Press Club v. Commission on Elections,^[40] the petitioner raised arguments similar to the constitutional reasons now used by the ponencia against the constitutionality of Section 11(b) of RA No. 6646.^[41] This provision prohibits the sale or donation of airtime to political candidates but directs the Comelec’s procurement and allocation of airtime to the candidates (Comelec time).

Ruling against the claim that Section 11(b) of R.A. No. 6646 violates the freedom of speech, the Court in National Press Club said:

x x x Withal, the rights of free speech and free press are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.”

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press.

x x x x

Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the police power of the State and the requisites for constitutionally valid exercise of that power. The essential question is whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or regulation of the operations of communication and information enterprises during an election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation of media operations during election periods.

x x x x
Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves. The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference. Here lies the core problem of equalization of the situations of the candidates with deep pockets and the candidates with shallow or empty pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the statutory mechanism which Section 11 (b) brings into operation is designed and may be expected to bring about or promote equal opportunity, and equal time and space, for political candidates to inform all and sundry about themselves, cannot be gainsaid.

Six years later, another challenge against Section 11(b) of R.A. No. 6646 was brought before the Court in Osmena v. Comelec.^[42]  The Court maintained its National Press Club ruling and held that unlike the other cases where the Court struck down the law or the Comelec regulation,^[43] the restriction of speech under Section 11(b) of RA No. 6646 is merely incidental and is no more than necessary to achieve its purpose of promoting equality of opportunity in the use of mass media for political advertising.  The restriction is limited both as to time and as to scope.

In other words, the Court found Section 11(b) of R.A. No. 6646 to be a content-neutral regulation and, thus, only needs a substantial government interest to support it. Governmental interest is substantial if it passes the test formulated in the United States v. O’ Brien:^[44] a government regulation is sufficiently justified –

(i)	if it is within the constitutional power of the Government;
(ii)	if it furthers an important or substantial governmental interest;
(iii)	if the governmental interest is unrelated to the suppression of free expression; and
(iv)	if the incident restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.[45]

Accordingly, in determining whether a regulation violates freedom of speech, one must identify its nature and, concomitantly, the kind of interest that the government must have to support it.

Under this type of constitutional analysis, a first basic step for the ponencia was to establish the nature of Comelec Resolution No. 9615 as a content-based restriction on the candidates’ freedom of speech before jumping to the conclusion that restrictions on “political speech” must be “justified by a compelling state interest.” Without a clear established finding that the resolution is a content-based restriction, the Court would leave the public guessing on our basis in reaching a conclusion different from that we reached in Osmena.

In question form, are we saying that the allocation of a maximum of 180 minutes and 120 minutes of radio and television advertisements, respectively, to each national candidate (under Comelec Resolution No. 9615) unduly restricts freedom of speech, while the arrangement where the Comelec shall exclusively procure “Comelec time” free of charge^[46] and allocate it equally and impartially among the candidates within the area of coverage of all radio and television stations does not?

If the Court answers in the affirmative, then the Court must expressly and carefully draw the line. In that event, I expressly reserve my right to modify this Opinion on the ground that Comelec Resolution No. 9615 is a content-neutral restriction.

The absence of the required constitutional analysis is made worse by the ponencia’s citation of Buckley v. Valeo,^[47] a US case which declared the statutory limits on campaign expenditure unconstitutional for violating freedom of speech on the theory that speech is money. Osmena already put into serious question the applicability of the US Supreme Court’s reasoning in this case^[48] in our jurisdiction given the presence of Section 4, Article IX-C in the 1987 Constitution and our own unique political and social culture. Thus, to me, citing Buckley to back up a myopic view of freedom of speech is seriously disturbing.

b. Radio and television stations
The Constitution’s approval of “[r]estricting the speech of some in order to enhance the relative voice of others” neither applies to the candidates nor to the medium in which this speech may be made, i.e., to television and the radio stations themselves. During elections, the candidates and these stations go hand-in-hand, bombarding the public with all kinds of election related information one can imagine.

Under Comelec Resolution No. 9615, the “restrictions” on the airtime limits of candidates and registered political parties only indirectly affect the radio and broadcast stations’ more specific freedom of the press, as will be discussed below.^[49] If at all, it is their potential revenues that are directly affected by the Comelec resolution. But even this effect does not give them any cause to complain.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections,^[50] the Court ruled that radio and television stations may be compelled to grant free airtime to the Comelec for the purpose of allocating and distributing these equally among candidates since under the Constitution, their franchises may be amended for the “common good” – in this case, the public will benefit because they will be fully informed of the issues of the election.

In the present case, will we have a different result because the Comelec effectively reduces the maximum number of minutes each radio and television may sell or donate to a candidate or a registered political party? I do not think so.

It may be argued that while the quantity of campaign advertisements is reduced, this reduction inversely and proportionately increases the radio and television stations’ own time - the freedom of the press at its very basic^[51] - to actively perform their duty to assist in the functions of public information and education.^[52]  Thus, contrary to the ponencia’s very broad statements, the press is not in any way “silenced” or “muffled under Comelec Resolution No. 9615”; what the resolution affects is merely the duration of allowable of radio and television advertisements by the candidates and registered political parties. In the same manner, under Comelec Resolution No. 9615, the radio and television networks themselves are not hindered in pursuing their respective public information campaigns and other election-related public service activity. I incidentally find the Pentagon Papers case, which the ponencia found pertinent to quote, to be simply inapplicable.

Given these observations, the ponencia’s conclusion that Comelec Resolution No. 9615 is violative of the right to suffrage cannot but equally stand on very shaky constitutional ground.

D. Closing

The foregoing discussions simply reinforce my view that in enacting RA No. 9006, Congress has allowed the Comelec considerable latitude in determining, within statutory limits, whether a strict or liberal application of the airtime limits in a particular election period is more appropriate. Unless the Comelec has no reasonable basis and adequate explanation for its action and unless the parties directly affected are not given opportunity to be heard on this action – as in the present case – the Court should withhold the exercise of its reviewing power.

In these lights, I submit that, unless adequately explained, the resolution of the substantive constitutional issues should be left for future consideration as they are not absolutely necessary to the resolution of this case.

---

^[1] See Comelec Minute Resolution No. 04-0113.

^[2] Comelec Resolution No. 6520.

^[3] 551 Phil. 1 (2007).

^[4] 329 Phil. 987 (1996).

^[5] Article IX-C, Section 2(1), 1987 Constitution.

^[6] Tolentino v. COMELEC, 465 Phil. 385 (2004).

^[7] See Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834 and 171246, April 20, 2006, 488 SCRA 1, 72.

^[8] Supra note 4.

^[9] Bedol v. Commissions on Elections, G.R. No. 179830, December 3, 2009, 606 SCRA 554.

^[10] See Namil v. Commission on Elections, 460 Phil. 751 (2003); and Sandoval v. Commission on Elections, 380 Phil. 375 (2000).

^[11] This provision reads:

Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

^[12] This provision reads:

Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

^[13] Victorias Milling Company, Inc. v. Social Security Commission, G.R. No. L-16704, March 17, 1962; Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary, G.R. No. 108524, November 10, 1994, 238 SCRA 63.

^[14] Republic v. Drugmakers’ Laboratories, Inc., G.R. No. 190837, March 5, 2014, citing Commissioner of Internal Revenue v. Court of Appeals, 329 Phil. 987, 1007 (1996), in turn citing Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary, G.R. No. 108524, November 10, 1994, 238 SCRA 63, 69; First National Bank of Lexington, Tennessee v. Sanders, 946 F. 2d 1185 (1991); and Animal Legal Defense Fund v. Quigg and Verity, 932 F. 2d 920, 18 USPQ. 2d 1677 (1991).

^[15] Republic v. Drugmakers’ Laboratories, Inc., G.R. No. 190837, March 5, 2014, citing Commissioner of Internal Revenue v. Court of Appeals, 329 Phil. 987 (1996); and Nachura, Antonio E. B., Outline Reviewer in Political Law (2009), p. 416

^[16] See also Tañada v. Hon. Tuvera, 230 Phil. 528 (1986).

^[17] Administrative Law, Law on Public Officers and Election Law, Ruben Agpalo, 2005 ed., citing Phil. Communications Satellite Corp. v. Alcuaz, 259 Phil. 707 (1989). See also Dagan, et al. v. Philippine Racing Commission, et al., 598 Phil. 406 (2009).

^[18] Central Bank of the Philippines v. Cloribel, 150-A Phil. 86 (1972).

^[19] Corona v. United Harbor Pilots Association of the Philippines, 347 Phil. 333, 342 (1997); Philippine Consumers Foundation, Inc. v. Secretary of Education, Culture and Sports, 237 Phil. 606 (1987).

^[20] The Court said: “Like any other government agency, however, the CIR may not disregard legal requirements or applicable principles in the exercise of its quasi-legislative powers” and then proceeded to “distinguish between two kinds of administrative issuances — a legislative rule and an interpretative rule.”

^[21] Supra note 13.

^[22] See Separate Opinion of Justice Josue Belosillo in Commissioner of Internal Revenue v. Court of Appeals, supra note 4.

^[23] While the Comelec under resolution 9615 merely “interpreted” (or more accurately, re-interpreted) the same provision of RA 9006, one should not confuse resolution 9615 simply as an interpretative rule since every election is distinct from the previous ones and different guidelines in order to ensure that the rules are updated to respond to existing circumstances (Arroyo v Department of Justice, G.R. No. 199082, September 18, 2012, 681 SCRA 181). Hence, in issuing resolution 9615, the Comelec was not simply “interpreting” the elections laws but is actually exercising its power of subordinate legislation.

^[24] Section 4, Article IX-C, 1987 Constitution.

^[25] See http://tcdn05.abs-cbnnews.com/nation/06/13/13/sans-tro-9-senate-bets-buhay-breached-ads-cap.

^[26] See Sections 100 and 101 of Batas Pambansa Blg. 881, as amended by Section 13 of RA No.7166.

^[27] Section 4, Article IX-C, 1987 Constitution.

^[28] General v. Urro, G.R. No. 191560, March 29, 2011, 646 SCRA 567.

^[29] Id.

^[30] Tolentino v. COMELEC, supra note 6.

^[31]  In Demetria v. Alba,¹³⁴ this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA¹³⁵ as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.'
   
   
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.'
   
   
3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'
   
   
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.
   
   
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens.
   
   
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
   
   
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted).
   

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories:

1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.

^[32] Orceo v. Commission on Elections, G.R. No. 190779, March 26, 2010, 616 SCRA 684.

^[33] Romualdez v. Sandiganbayan, G.R. No. 152259, July 29, 2004, 435 SCRA 371.

^[34] See Southern Cross Cement Corporation v. Philippine Cement Manufacturers Corporation, G.R. No. 158540, July 8, 2004, 434 SCRA 65. In the present case, the ponencia does not even disclose the terms of the legislative intent which Senator Cayetano has called the Court’s attention to.

^[35] www.yourdictionary.com/each.

^[36] Section 2, RA No. 9006.

^[37] Section 4, Article IX-C, 1987 Constitution.

^[38] See Sections 100 and 101 of Batas Pambansa Blg. 881, as amended by Section 13 of RA No.7166.

^[39] Supra note 3.

^[40] G.R. No. 102653, March 5, 1992, 207 SCRA 1.

^[41] Section 11. Prohibited Forms of Election Propaganda. - In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcement or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.

Sections 90 and 92 of BP Blg No. 881 pertinently reads:

Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated.

x x x x

Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Emphasis supplied)

^[42] 351 Phil. 692 (1998).

^[43]  Blo Umpar Adiong v. Commission on Elections¸ G.R. No. 103956, March 31, 1992, 207 SCRA 712; Sanidad v. Commission on Elections, G.R. No. 90878, January 29, 1990, 181 SCRA 529; and Mutuc v. COMELEC, L-32717, November 26, 1970, 36 SCRA 228.

^[44] 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680 (1968).

^[45] See also Social Weather Station v. Commission on Elections, G.R. No. 147571, May 5, 2001, 357 SCRA 496.

^[46] Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections, Inc., 352 Phil. 153 (1998).

^[47] 424 U.S. 1; 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).

^[48] In Osmena v. Comelec, the Court observed:

Do those who endorse the view that government may not restrict the speech of some in order to enhance the relative voice of others also think that the campaign expenditure limitation found in our election laws is unconstitutional?  How about the principle of one person, one vote, is this not based on the political equality of voters?  Voting after all is speech.  We speak of it as the voice of the people - even of God.  The notion that the government may restrict the speech of some in order to enhance the relative voice of others may be foreign to the American Constitution.  It is not to the Philippine Constitution, being in fact an animating principle of that document.

^[49] Section 4, Article III, 1987 Constitution.

^[50] Supra note 46.

^[51] See Section 24, Article II and Section 10, Article XVI of the 1987 Constitution.

^[52] See Section 4, RA No. 7252.

---

CONCURRING OPINION

LEONEN, J.:

I concur and vote to grant the petitions.

At issue in this case is the Commission on Elections’ (COMELEC) more restrictive interpretation of Section 6.2 of Republic Act No. 9006 or the Fair Election Act resulting in further diminution of the duration of television and radio advertising that candidates may have during the 2013 elections.  This section provides:

Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:

. . . .

6.2

1. Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
   
   
2. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party.

Prior restraint is defined as the “official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.”^[1]  Prior restraints of speech are generally presumptively unconstitutional.  The only instances when this is not the case are in pornography,^[2] false and misleading advertisement,^[3] advocacy of imminent lawless action,^[4] and danger to national security.^[5]

Section 6 of the Fair Election Act is a form of prior restraint.  While it does not totally prohibit speech, it has the effect of limitations in terms of the candidates’ and political parties’ desired time duration and frequency.

When an act of government is in prior restraint of speech, government carries a heavy burden of unconstitutionality.^[6]  In Iglesia ni Cristo v. Court of Appeals,^[7] this court said that “any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows.”^[8]  This is the only situation where we veer away from our presumption of constitutionality.^[9]

In the context of elections, this court declared as unconstitutional the acts of the Commission on Elections in prohibiting the playing of taped jingles,^[10] disallowing newspaper columnists to express their opinion on a plebiscite,^[11] and limiting the publication of election surveys.^[12]

However, this presumption, though heavy, is not insurmountable.

Generally, there are very clear constitutionally defined and compelling interests to limit the speech of candidates and political parties. Article IX-C, Section 4 of the Constitution provides:

Section 4.  The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.  Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free orderly honest, peaceful, and credible elections. (Emphasis supplied)

In addition, the Commission on Elections has been given the competence to minimize election spending in Section 2(7) of Article IX-C of the Constitution:

Section 2.  The Commission on Elections shall exercise the following powers and functions:

. . . .

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.

In National Press Club v. COMELEC,^[13] this court considered the prohibition on the sale and donation of space and time for political advertisement provided in Section 11(b) of Republic Act No. 6646.^[14]  This court recognized that though freedom of speech is a preferred right in our constitutional hierarchy, it is not unlimited.^[15]  There are other constitutional values that should also be considered including the equalization of opportunities for candidates.^[16]  This idea was echoed in Osmeña v. COMELEC.^[17]  This court found that the “restriction on speech is only incidental, and it is no more than is necessary to achieve its purpose of promoting equality of opportunity in the use of mass media for political advertising.”^[18]  In Osmeña, this court noted the silence of the legislature in amending Section 11(b) of Republic Act No. 6646.^[19]

Thus, in 2001, the Fair Election Act^[20] was promulgated, repealing the challenged provisions in National Press Club and Osmeña.  Congress determined that the old law was not effective in giving voice to the people.^[21]  It shifted state policy by liberalizing the granting of time and space to candidates and political parties while maintaining equality in terms of duration of exposure.^[22]

Section 6 of the Fair Election Act is a
form of prior restraint

It is recognized that Section 6 of the Fair Election Act does not completely prohibit speech.  However, the provision effectively limits speech in terms of time duration and frequency.

Admittedly, the present wording of Section 6 of the Fair Election Act does not clearly imply whether the one hundred twenty (120) minutes of television advertisement and the one hundred eighty (180) minutes of radio advertisement allotted to each candidate or registered political party is for each network or is an aggregate time for all such advertisements, whether paid or donated, during the entire election period.  However, during the 2007^[23] and the 2010^[24] elections, the Commission on Elections allowed candidates and registered political parties to advertise as much as 120 minutes of television advertisement and 180 minutes of radio advertisement per station.

For the 2013 elections, however, respondent Commission on Elections, without hearing, issued Resolution No. 9615, Section 9(a) which now interprets the 120/180 minute airtime to be on a “total aggregate basis.”  This section provides:

SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. - All parties and bona fide candidates shall have equal access to media time and space for their election propaganda during the campaign period subject to the following requirements and/or limitations:

a. Broadcast Election Propaganda:

The duration of air time that a candidate, or party may use for their broadcast advertisements or election propaganda shall be, as follows:

For Candidates/Registered Political parties for a National Elective   Position	Not more than an aggregate total of one hundred (120) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and one hundred eighty (180) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation
For Candidates/Registered Political parties for a Local Elective Position	Not more than an aggregate total of sixty (60) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and ninety (90) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation.

In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias, color motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned together in the broadcast election propaganda or advertisements, the length of time during which they appear or are being mentioned or promoted will be counted against the airtime limits allotted for the said candidates or parties and the cost of the said advertisement will likewise be considered as their expenditures, regardless of whoever paid for the advertisements or to whom the said advertisements were donated.

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision.  To determine whether the appearance or guesting in a program is bona fide, the broadcast stations or entities must show that: (1) prior approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules.

Provided, further, that a copy of the broadcast advertisement contract be furnished to the Commission, thru the Education and Information Department, within five (5) days from contract signing.

The issuance caused petitioners to send their respective letters to respondent to clarify and/or protest against the new regulations.  It was only then that respondent Commission on Elections held a public hearing.^[25]  Respondent then issued Resolution No. 9631 amending certain provisions of Resolution No. 9615, Section 9(a), without touching on the “total aggregate” interpretation of Section 6 of the Fair Election Act.^[26]

In addition to the television and radio networks represented in the various petitions, a candidate for the senatorial elections, Alan Peter Cayetano, also filed an intervention.^[27]

Whether the airtime in television and radio spots of candidates and registered political parties may be regulated is not an issue in this case.  Indeed, the Constitution clearly allows this for purposes of providing equal opportunity to all candidates.^[28]  The issue is also not whether Congress, in promulgating Section 6 of the Fair Election Act, committed grave abuse of discretion in determining a cap of 120 minutes advertising for television and 180 minutes for radio.  It is within the legislature’s domain to determine the amount of advertising sufficient to balance the need to provide information to voters and educate the public on the one hand, and to cause the setting of an affordable price to most candidates that would reduce their expenditures on the other.  We are not asked to decide in these cases whether these actual time limitations hurdle the heavy burden of unconstitutionality that attends to any prior limitations on speech.

Rather, petitioners and the intervenor raise constitutional objections to a second order of restriction: that the interpretation earlier allowed by the Commission on Elections was suddenly, arbitrarily, and capriciously reduced by adopting the “total aggregate” method.

While the Commission on Elections does have the competence to interpret Section 6, it must do so without running afoul of the fundamental rights enshrined in our Constitution, especially of the guarantee of freedom of expression and the right to suffrage.  Not only must the Commission on Elections have the competence, it must also be cognizant of our doctrines in relation to any kind of prior restraint.

It has failed to discharge this burden.

A more restrictive interpretation of
Section 6 will not necessarily meet the
Commission on Elections’ expected
economic benefits

The Commission on Elections hinges the shift in the interpretation of Section 6 of the Fair Election Act on its constitutional power to recommend to Congress effective measures to minimize election spending.^[29]  During the January 31, 2013 public hearing, COMELEC Chairman Brillantes said:

Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually to level the playing field. That should be the paramount consideration. If we allow everybody to make use of all their time and all radio time and TV time then there will be practically unlimited use of the mass media. . . .^[30]

On a cursory look, it will seem as if a reduction in the length of airtime allowable per candidate will translate to a reduction in a candidate’s election spending.  For example, under the old regulation of giving 120 minutes “per network,” it would mean that if the candidate wanted to broadcast on two (2) television networks, the candidate could purchase a total of 240 minutes.  The total campaign expenditure for television advertisements would be 240 minutes multiplied by the rate for television advertisements per minute, say, P500,000.00.  The candidate would have to spend a total of P120 million for 240 minutes of television advertisements.  Under the new regulation of giving 120 minutes to the candidate in an “aggregate total,” the candidate would have to distribute the 120 minutes between the two (2) networks.  The 120 minutes multiplied by P500,000.00 is only P60 million.  The reduction in expenditure is obvious under this example.

However, the previous example is a simplistic view starkly different from our economic realities.  This assumes that the regulation would not affect the prices charged by the networks.  A more realistic economic possibility is that the restriction in airtime allotment of candidates will increase the prices of television and radio spots.  This can happen because the limitation in the airtime placed on each candidate will increase his or her willingness to pay for television spots at any price.  This will be the perfect opportunity for television networks to hike up their prices.  For instance, these networks can increase their usual rates of P500,000.00/minute to P1,000,000.00/minute.  The candidate will take the airtime at this rate because of the inevitable need for the campaign to be visible to the public eye.  At this rate, it will cost a candidate P120 million to air 120 minutes.  This is the same price to be paid had it been under the old regulation; hence, the candidate’s election spending will not be minimized.  In fact, it will even increase the cost per unit of airtime.

Ideally, television and radio stations should bid and compete for a candidate’s or a political party's airtime allocation, so that instead of networks dictating artificially high prices for airtime (which price will be high as television and radio stations are profit-driven), the market will determine for itself the price.  The market for airtime allocation expands, and a buyer's market emerges with low prices for airtime allocation.  This situation assumes that in the market for airtime allocation, television and radio networks are the same in terms of audience coverage and facilities.

What Resolution No. 9615 does not take into consideration is that television and radio networks are not similarly situated.  The industry structure consists of network giants^[31] with tremendous bargaining powers that dwarf local community networks.  Thus, a candidate with only a total aggregate of 120/180 minutes of airtime allocation will choose a national network with greater audience coverage to reach more members of the electorate.  Consequently, the big networks can dictate the price, which it can logically set at a higher price to translate to more profits.  This is true in any setting especially in industries with high barriers to entry and where there are few participants with a high degree of market dominance.  Reducing the airtime simply results in a reduction of speech and not a reduction of expenses.

Resolution No. 9615 may result in local community television and radio networks not being chosen by candidates running for national offices.  Hence, advertisement by those running for national office will generally be tailored for the national audience.  This new aggregate time may, therefore, mean that local issues which national candidates should also address may not be the subject of wide-ranging discussions.

Candidates’ expenses are still limited by existing regulations that peg total allowable expenditures based on the number of votes.  Even with aggregate airtime limits being allowed on a per station basis, the limits on expenditures remain the same.  In other words, the limits in candidate expenses are already set and are independent of whether aggregate time is total airtime or per station.

Each candidate decides what media they will avail to allow for efficiency, i.e., the most impact with the broadest audience and with the least cost.  All candidate’s limits will be the same.  Limiting airtime to only a total of 120/180 minutes per candidate or political party will most likely only succeed in caricaturing debate, enriching only the more powerful companies in the media sector and making it more prohibitive for less powerful candidates to get their messages across.

There is no showing from respondent Commission on Elections of any study that the “total aggregate basis” interpretation will indeed minimize election spending.  It did not show that this would better serve the objective of assisting the poorer candidates.  The relationship between the regulation and constitutional objective must be more than mere speculation.  Here, the explanation respondent Commission on Elections gave is that it has the power to regulate.  As COMELEC Chairman Brillantes said during the January 31, 2013 public hearing:

No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that is our prerogative. How can you encroach and what is unconstitutional about it?^[32] (Emphasis supplied)

We emphasize that where a governmental act has the effect of preventing speech before it is uttered, it is the burden of government and not of the speaker to justify the restriction in terms which are clear to this court. Article III, Section 4 of the Constitution which provides for freedom of expression occupies such high levels of protection that its further restriction cannot be left to mere speculation.

Contrary to COMELEC Chairman Brillantes’ statement, this court will step in and review the Commission on Elections’ right to amplify if it infringes on people's fundamental rights.  What the Commission “feels,” even if it has the prerogative, will never be enough to discharge its burden of proving the constitutionality of its regulations limiting the freedom of speech.

Election regulations are not always content-neutral regulations, and even if they were, they do not necessarily carry a mantle of immunity from free speech scrutiny.  The question always is whether the regulations are narrowly tailored so as to meet a significant governmental interest and so that there is a lesser risk of excluding ideas for a public dialogue.^[33]  The scrutiny for regulations which restrict speech during elections should be greater considering that these exercises substantiate the important right to suffrage.  Reducing airtime to extremely low levels reduces information to slogans and sound bites which may impoverish public dialogue.  We know that lacking the enlightenment that comes with information and analysis makes the electorate’s role to exact accountability from elected public officers a sham.  More information requires more space and airtime equally available to all candidates.  The problem in this case is that the Commission on Elections does not seem to have the necessary basis to justify the balance it wanted to strike with the imposition of the aggregate time limits.

Just because it is called electoral reform does not necessarily make it so.

The standard of analysis for prior restraints on speech is well-known to all legal practitioners especially to those that may have crafted the new regulations.  Good intentions are welcome but may not be enough if the effect would be to compromise our fundamental freedoms.  It is this court’s duty to perform the roles delegated to it by the sovereign people.  In a proper case invoking this court’s powers of judicial review, it should sometimes result in more mature reflection by those who do not benefit from its decisions.  The Commission on Elections does not have a monopoly of the desire for genuine electoral reform without compromising fundamental rights.  Our people cannot be cast as their epigones.

Fundamental rights are very serious matters.  The core of their existence is not always threatened through the crude brazen acts of tyrants.  Rather, it can also be threatened by policies that are well-intentioned but may not have the desired effect in reality.

We cannot do justice to hard-won fundamental rights simply on the basis of a regulator’s intuition.  When speech and prior restraints are involved, it must always be supplemented by rigorous analysis and reasoned evidence already available for judicial review.

Thus, I vote to PARTIALLY GRANT the petitions.  Section 9(a) of Resolution No. 9615 is unconstitutional and is, therefore, NULL and VOID.  This has the effect of reinstating the interpretation of the Commission on Elections with respect to the airtime limits in Section 6 of the Fair Elections Act.  I vote to DENY the constitutional challenge to Sections 7(d) and 14 of COMELEC Resolution 9615, as amended by Resolution 9631.

---

^[1] Chavez v. Gonzales, 569 Phil. 155, 203 (2008) [Per C.J. Puno, En Banc].

^[2] Soriano v. Laguardia, 605 Phil. 43 (2009) [Per J. Velasco, Jr., En Banc]; Pita v. Court of Appeals, 258-A Phil. 134 (1989) [Per J. Sarmiento, En Banc]; Gonzalez v. Katigbak, 222 Phil. 225 (1985) [Per C.J. Fernando, En Banc].

^[3] Chavez v. Gonzales, 569 Phil. 155 (2008) [Per C.J. Puno, En Banc]; Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III, 561 Phil. 386 (2007) [Per Austria-Martinez, En Banc].

^[4] Eastern Broadcasting Corporation v. Dans, Jr., 222 Phil. 151 (1985) [Per J. Gutierrez, Jr., En Banc].

^[5] Id.

^[6] Iglesia ni Cristo v. CA, 328 Phil. 893, 928 (1996) [Per J. Puno, En Banc], citing Near v. Minnesota, 283 US 697 (1931); Bantam Books Inc. v. Sullivan, 372 US 58 (1963); New York Times v. United States, 403 US 713 (1971); See also Social Weather Station v. COMELEC, 409 Phil. 571, 584–585 (2001) [Per J. Mendoza, En Banc], citing New York Times v. United States, 403 U.S. 713, 714, 29 L.Ed. 2d 822, 824 (1971).

^[7] 328 Phil. 893 (1996) [Per J. Puno, En Banc].

^[8] Id. at 928.

^[9] See Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 387 [Per J. Mendoza, En Banc], citing Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140 [Per J. Cruz, En Banc]; See also Osmeña v. COMELEC, 351 Phil. 692 (1998) [Per J. Mendoza, En Banc]; National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1 [Per J. Feliciano, En Banc]; Angara v. Electoral Commission, 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

^[10] Mutuc v. COMELEC, 146 Phil. 798 (1970) [Per J. Fernando, En Banc], cited as prior restraint in Osmeña v. COMELEC, 351 Phil. 692, 707 (1998) [Per J. Mendoza, En Banc].

^[11] Sanidad v. COMELEC, 260 Phil. 565 (1990) [Per J. Medialdea, En Banc], cited as prior restraint in Osmeña v. COMELEC, 351 Phil. 692, 718 (1998) [Per J. Mendoza, En Banc].

^[12] Social Weather Station v. COMELEC, 409 Phil. 571 (2001) [Per J. Mendoza, En Banc].

^[13] G.R. No. 102653, March 5, 1992, 207 SCRA 1 [Per J. Feliciano, En Banc].

^[14] Rep. Act 6646, sec. 11 provides:

Sec. 11. Prohibited Forms of Election Propaganda. - In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

. . . .

b. for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.

^[15] “It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election period." It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the press in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process by which the people identify those who shall have governance over them. Thus, it is frequently said that these rights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that ‘the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.’” National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 9 [Per J. Feliciano, En Banc], with a voting of 11-3.

^[16] Const., art. IX-C, sec. 4 provides:

Section 4.  The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.  Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

^[17] 351 Phil. 692 (1998) [Per J. Mendoza, En Banc].

^[18] Id. at 711, with a voting of 11-4.

^[19] “The fact is that efforts have been made to secure the amendment or even repeal of §11(b) of R.A. No. 6646. No less than five bills were filed in the Senate in the last session of Congress for this purpose, but they all failed of passage. Petitioners claim it was because Congress adjourned without acting on them. But that is just the point. Congress obviously did not see it fit to act on the bills before it adjourned.

We thus have a situation in which an act of Congress was found by this Court to be valid so that those opposed to the statute resorted to the legislative department. The latter reconsidered the question but after doing so apparently found no reason for amending the statute and therefore did not pass any of the bills filed to amend or repeal the statute. Must this Court now grant what Congress denied to them? The legislative silence here certainly bespeak of more than inaction.” Osmeña v. COMELEC, 351 Phil. 692, 716–717 (1998) [Per J. Mendoza, En Banc].

^[20] Rep. Act No. 9006 (2001).

^[21] Rep. Act No. 9006 (2001), sec. 14  provides:

Section 14. Repealing Clause. - Section 67 and 85 of the Omnibus Election Code (Batas Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.

^[22] See Rep. Act No. 9006 (2001), sec. 6.2(b), which provides:

Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:

. . . .

6.2 b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

^[23] COMELEC Resolution No. 7767 (2006), sec. 13(1), as amended by COMELEC Resolution No. 7836 (2007).

^[24] COMELEC Resolution No. 8758 (2010), sec. 11(a), provides that for candidates and registered political parties for a national elective position, the limitations were “One hundred twenty (120) minutes in television or cable television and one hundred eighty (180) minutes in radio, for all television or cable television networks, or all radio stations whether by purchase or donation, wherever located, per  station.” The phrase “aggregate total” was introduced in COMELEC Resolution No. 9615 (2013) questioned here, with the phrases “for all television and cable television networks, or all radio stations” and “per station” not appearing.

^[25] Respondent COMELEC held a public hearing on January 31, 2013.

^[26] COMELEC Resolution No. 9631, par. 5, amended COMELEC Resolution No. 9615, sec. 9(a), to wit:

5. The third (3^rd) paragraph of Section 9 (a) on the “Requirements and/or Limitations on the Use of Election Propaganda through Mass Media” is revised and amended to read:

“Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that parties and candidates were afforded equal opportunities to promote their candidacy, the media entity shall give prior notice to the COMELEC, through the appropriate Regional Election Director (RED), or in the case of the National Capital Region (NCR), the Education and Information Department (EID). If such prior notice is not feasible or practicable, the notice shall be sent within twenty-four (24) hours from the first broadcast or publication. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules.” (Emphasis in the original)

^[27] In G.R. No. 205357, intervenor assails Section 9(a) of Resolution No. 9615, which changed the interpretation of the 120/180-minute rule from “per station” to “total aggregate” basis.

^[28] Const., art. IX-C, sec. 4 provides:

Section 4.  The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.  Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

^[29] CONST., art. IX-C, sec. 2(7).

^[30] Main opinion, p. 24.

^[31] “The Philippines probably presents the most diverse media picture in the region, with a wide variety of broadcasters, both radio and television, operating both nationally and locally. At the same time, the leading media houses are very commercialised, with ownership concentrated mainly in the hands of large companies or family businesses. There is also burgeoning and essentially unregulated radio market where “block timers” purchase time to espouse their views, which has been blamed for the growing lack of public trust in the media.” See T. Mendel, Audiovisual media policy, regulation and independence in Southeast Asia (visited September 1, 2014).

^[32] Main opinion, p. 23.

^[33] Chavez v. Gonzales, 569 Phil. 155, 205 (2008) [Per C.J. Puno, En Banc]; See Ward v. Rock Against Racism, 491 U.S. 781 (1989), quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); See also Turner Broad. System, Inc. v. Federal Communications Commission, 512 U.S. 622, 642 (1994); City of Ladue v. Gilleo, 512 U.S. 43, 54–59 (1994).