351 Phil. 692
MENDOZA, J.:
This is a petition
for prohibition, seeking a reexamination of the validity of §11(b) of R.A. No.
6646, the Electoral Reforms Law of 1987, which prohibits mass media from
selling or giving free of charge print space or air time for campaign or other
political purposes, except to the Commission on Elections.[1] Petitioners are candidates for
public office in the forthcoming elections. Petitioner Emilio M. R. Osmeña is candidate for President of the
Philippines, while petitioner Pablo P. Garcia is governor of Cebu Province,
seeking reelection. They contend that
events after the ruling in National Press Club v. Commission on Elections[2] “have called into question the
validity of the very premises of that [decision].”[3]
There Is No Case or Controversy to Decide,
Only an Academic Discussion to
Hold
NPC v.
COMELEC upheld the
validity of §11(b) of R.A. No. 6646 against claims that it abridged freedom of
speech and of the press.[4] In urging a reexamination of that
ruling, petitioners claim that experience in the last five years since the
decision in that case has shown the “undesirable effects” of the law because
“the ban on political advertising has not only failed to level the playing
field, [but] actually worked to the grave disadvantage of the poor
candidate[s]”[5] by depriving them of a medium which
they can afford to pay for while their more affluent rivals can always resort
to other means of reaching voters like airplanes, boats, rallies, parades, and
handbills.
No empirical
data have been presented by petitioners to back up their claim, however. Argumentation is made at the theoretical and
not the practical level. Unable to show
the “experience” and “subsequent events” which they claim invalidate the major
premise of our prior decision, petitioners now say “there is no need for
‘empirical data’ to determine whether the political ad ban offends the
Constitution or not.”[6] Instead they make arguments from
which it is clear that their disagreement is with the opinion of the Court on
the constitutionality of §11(b) of R.A. No. 6646 and that what they seek is a
reargument on the same issue already decided in that case. What is more, some
of the arguments were already considered and rejected in the NPC case.[7]
Indeed,
petitioners do not complain of any harm suffered as a result of the operation
of the law. They do not complain that they have in any way been disadvantaged
as a result of the ban on media advertising. Their contention that, contrary to the holding in NPC, §11(b)
works to the disadvantage of candidates who do not have enough resources to
wage a campaign outside of mass media can hardly apply to them. Their financial
ability to sustain a long drawn-out campaign, using means other than the mass
media to communicate with voters, cannot be doubted. If at all, it is candidates like intervenor Roger Panotes, who is
running for mayor of Daet, Camarines Norte, who can complain against §11(b) of
R.A. No. 6646. But Panotes is for the
law which, he says, has “to some extent, reduced the advantages of moneyed
politicians and parties over their rivals who are similarly situated as ROGER
PANOTES.” He claims that “the elimination of this substantial advantage is one
reason why ROGER PANOTES and others similarly situated have dared to seek an
elective position this coming elections.”[8]
What petitioners
seek is not the adjudication of a case but simply the holding of an academic
exercise. And since a majority of the
present Court is unpersuaded that its decision in NPC is founded in
error, it will suffice for present purposes simply to reaffirm the ruling in
that case. Stare decisis et non
quieta movere. This is what makes
the present case different from the overruling decisions[9] invoked by petitioners.
Nevertheless, we have undertaken to revisit the decision
in NPC v. COMELEC in order to clarify our own understanding of its reach
and set forth a theory of freedom of speech.
No Ad Ban, Only a Substitution of
COMELEC Space and
COMELEC
Time for the
Advertising Page and
Commercials in Mass Media
The term
political “ad ban,” when used to describe §11(b) of R.A. No. 6646, is
misleading, for even as §11(b) prohibits the sale or donation of print space
and air time to political candidates, it mandates the COMELEC to procure and
itself allocate to the candidates space and time in the media. There is no suppression of political ads
but only a regulation of the time and manner of advertising.
Thus, §11(b)
states:
Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
. . . .
(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 to give 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 period.
On the other
hand, the Omnibus Election Code provisions referred to in §11(b) read:
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. (Sec. 45, 1978 EC).
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. (Sec. 46, 1978 EC)
The law’s
concern is not with the message or content of the ad but with ensuring media equality
between candidates with “deep pockets,” as Justice Feliciano called them in his
opinion of the Court in NPC, and those with less resources.[10] The law is part of a package of
electoral reforms adopted in 1987. Actually, similar effort was made in 1970 to equalize the opportunity of
candidates to advertise themselves and their programs of government by
requiring the COMELEC to have a COMELEC space in newspapers, magazines, and
periodicals and prohibiting candidates to advertise outside such space, unless
the names of all the other candidates in the district in which the candidate is
running are mentioned “with equal prominence.” The validity of the law was challenged in Badoy, Jr. v. COMELEC.[11] The voting was equally divided
(5-5), however, with the result that the validity of the law was deemed
upheld.
There is a
difference in kind and in severity between restrictions such as those imposed
by the election law provisions in question in this case and those found to be
unconstitutional in the cases cited by both petitioners and the Solicitor
General, who has taken the side of petitioners. In Adiong v. COMELEC[12] the Court struck down a regulation of the COMELEC
which prohibited the use of campaign decals and stickers on mobile units, allowing their location only in the COMELEC
common poster area or billboard, at the campaign headquarters of the candidate
or his political party, or at his residence. The Court found the restriction “so broad that it encompasses even the
citizen’s private property, which in this case is a privately-owned car.”[13] Nor was there a substantial
governmental interest justifying the restriction.
[T]he constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, Section 1 in relation to Article IX(c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance.[14]
Mutuc v.
COMELEC[15] is of a piece with Adiong. An order of the COMELEC prohibiting the
playing of taped campaign jingles through sound systems mounted on mobile units
was held to be an invalid prior restraint without any apparent governmental
interest to promote, as the restriction did not simply regulate time, place or
manner but imposed an absolute ban on the use of the jingles. The prohibition was actually content-based
and was for that reason bad as a prior restraint on speech, as inhibiting as
prohibiting the candidate himself to use the loudspeaker. So is a ban against newspaper columnists
expressing opinion on an issue in a plebiscite a content restriction which,
unless justified by compelling reason, is unconstitutional.[16]
Here, on the
other hand, there is no total ban on political ads, much less restriction on
the content of the speech. Given the
fact that print space and air time can be controlled or dominated by rich
candidates to the disadvantage of poor candidates, there is a substantial or
legitimate governmental interest justifying exercise of the regulatory power of
the COMELEC under Art. IX-C, §4 of the Constitution, which 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.
The provisions
in question involve no suppression of political ads. They only prohibit the sale or donation of print space and air
time to candidates but require the COMELEC instead to procure space and time in
the mass media for allocation, free of charge, to the candidates. In effect, during the election period, the
COMELEC takes over the advertising page of newspapers or the commercial time of
radio and TV stations and allocates these to the candidates.
Nor can the
validity of the COMELEC take-over for such temporary period be doubted.[17] In Pruneyard Shopping Center v.
Robbins,[18] it was
held that a court order compelling a private shopping center to permit use of a
corner of its courtyard for the purpose of distributing pamphlets or soliciting
signatures for a petition opposing a UN resolution was valid. The order neither unreasonably impaired the
value or use of private property nor violated the owner’s right not to be
compelled to express support for any viewpoint since it can always disavow any
connection with the message.
On the other
hand, the validity of regulations of time, place and manner, under well-defined
standards, is well-nigh beyond question.[19] What is
involved here is simply regulation of this nature. Instead of leaving candidates to advertise freely in the mass
media, the law provides for allocation, by the COMELEC, of print space and air
time to give all candidates equal time and space for the purpose of ensuring
“free, orderly, honest, peaceful, and credible elections.”
In Gonzales
v. COMELEC,[20] the Court sustained the validity of
a provision of R.A. No. 4880 which in part reads:
SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. -— It is unlawful for any person whether or not a voter or candidate, or for any group, or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office.
The term “Candidate” refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate.
The term “Election Campaign” or “Partisan Political Activity” refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs,
Committees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against a party or
candidate;
(b) Holding political conventions, caucuses,
conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for
or against a candidate or party; . . .
In Valmonte
v. COMELEC,[21] on the other hand, the Court upheld
the validity of a COMELEC resolution prohibiting members of citizen groups or
associations from entering any polling place except to vote. Indeed, §261(k) of the Omnibus Election Code
makes it unlawful for anyone to solicit votes in the polling place and within a
radius of 30 meters thereof.
These decisions
come down to this: the State can
prohibit campaigning outside a certain period as well as campaigning within
a certain place. For unlimited
expenditure for political advertising in the mass media skews the political
process and subverts democratic self-government. What is bad is if the law prohibits campaigning by certain
candidates because of the views expressed in the ad. Content regulation cannot be done in the absence of any
compelling reason.
Law Narrowly Drawn to Fit
Regulatory Purpose
The main purpose
of §11(b) is regulatory. Any
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. The
restriction on speech, as pointed out in NPC, is limited both as to time
and as to scope.
Petitioners and
the dissenters make little of this on the ground that the regulation, which
they call a ban, would be useless any other time than the election period. Petitioners state: “[I]n testing the reasonableness of a ban on mountain-skiing, one
cannot conclude that it is limited because it is enforced only during the
winter season.”[22] What makes the regulation
reasonable is precisely that it applies only to the election period. Its enforcement outside the period would
make it unreasonable. More importantly,
it should be noted that a “ban on mountain skiing” would be passive in
nature. It is like the statutory cap on
campaign expenditures, but is so unlike the real nature of §11(b), as already
explained.
Petitioners
likewise deny that §11(b) is limited in scope, as they make another quaint
argument:
A candidate may court media to report and comment on his person and his programs, and media in the exercise of their discretion just might. It does not, however, follow that a candidate’s freedom of expression is thereby enhanced, or less abridged. If Pedro is not allowed to speak, but Juan may speak of what Pedro wishes to say, the curtailment of Pedro’s freedom of expression cannot be said to be any less limited, just because Juan has the freedom to speak.[23]
The premise of
this argument is that §11(b) imposes a ban on media political advertising. What petitioners seem to miss is that the prohibition against paid or sponsored
political advertising is only half of the regulatory framework, the other half
being the mandate of the COMELEC to procure print space and air time so that
these can be allocated free of charge to the candidates.
Reform of the Marketplace of Ideas,
Not Permissible?
Petitioners
argue that the reasoning of NPC is flawed, because it rests on a
misconception that Art. IX-C, §4 mandates the absolute equality of all
candidates regardless of financial status, when what this provision speaks of
is “equality of opportunity.” In
support of this claim, petitioners quote the following from the opinion of the
Court written by Justice Feliciano:
The objective which animates Section 11(b) is the equalizing, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign “war chests.”[24]
The Court meant
equalizing media access, as the following sentences which were omitted clearly
show:
Section 11(b) prohibits the sale or donation of print space and air time “for campaign or other political purposes” except to the Commission on Elections (“Comelec”). Upon the other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to procure “Comelec space” in newspapers of general circulation in every province or city and “Comelec time” on radio and television stations. Further, the Comelec is statutorily commanded to allocate “Comelec space” and “Comelec time” on a free of charge, equal and impartial basis among all candidates within the area served by the newspaper or radio and television station involved.[25]
On the other
hand, the dissent of Justice Romero in the present case, in batting for an
“uninhibited market place of ideas,” quotes the following from Buckley v.
Valeo:
[T]he concept that the government may restrict the speech of some elements in our society in order to enhance the relative voice of the others is wholly foreign to the First Amendment which was designed to “secure the widest possible dissemination of information from diverse and antagonistic sources” and “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”[26]
But do we really
believe in that? That statement was
made to justify striking down a limit on campaign expenditure on the theory
that money is speech. 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[27] is unconstitutional? How about the principle of one person, one
vote,[28] 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.
Indeed, Art.
IX-C, §4 is not the only provision in the Constitution mandating political
equality. Art. XIII, §1 requires
Congress to give the “highest priority” to the enactment of measures designed
to reduce political inequalities, while Art. II, §26 declares as a fundamental
principle of our government “equal access to opportunities for public
service.” Access to public office will
be denied to poor candidates if they cannot even have access to mass media in
order to reach the electorate. What
fortress principle trumps or overrides these provisions for political
equality?
Unless the
idealism and hopes which fired the imagination of those who framed the
Constitution now appear dim to us, how
can the electoral reforms adopted by them to implement the Constitution, of
which §11(b) of R.A. No. 6646, in relation to §§90 and 92 are part, be
considered infringements on freedom of speech? That the framers contemplated regulation of political propaganda similar
to §11(b) is clear from the following portion of the sponsorship speech of
Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or utilization of 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, there is a provision that during the election period, the Commission may regulate, among other things, the rates, reasonable free space, and time allotments for public information campaigns and forums among candidates for the purpose of ensuring free, orderly, honest and peaceful elections. This has to do with the media of communication or information.[29]
On the Claim that the Reforms
Have Been Ineffectual
Petitioners
contend that §11(b) is not a reasonable means for achieving the purpose for
which it was enacted. They claim that
instead of levelling the playing field as far as the use of mass media for
political campaign is concerned, §11(b) has abolished it. They further claim that §11(b) does not
prevent rich candidates from using their superior resources to the disadvantage
of poor candidates.
All this is of
course mere allegation. As stated in
the beginning, what petitioners claim to be the nation’s experience with the
law is merely argumentation against its validity. The claim will not bear analysis, however. Assuming that rich candidates can spend for
parades, rallies, motorcades, airplanes and the like in order to campaign while
poor candidates can only afford political ads, the gap between the two will not
necessarily be reduced by allowing unlimited mass media advertising because
rich candidates can spend for other propaganda in addition to mass media
advertising. Moreover, it is not true
that §11(b) has abolished the playing field. What it has done, as already stated, is merely to regulate its use
through COMELEC-sponsored advertising in place of advertisements paid for by
candidates or donated by their supporters.
It is finally
argued that COMELEC Space and COMELEC Time are ineffectual. It is claimed that people hardly read or
watch or listen to them. Again, this is
a factual assertion without any empirical basis to support it. What is more, it is an assertion concerning
the adequacy or necessity of the law which should be addressed to Congress. Well-settled is the rule that the choice of
remedies for an admitted social malady requiring government action belongs to
Congress. The remedy prescribed by it,
unless clearly shown to be repugnant to fundamental law, must be respected.[30] As shown in this case, §11(b) of
R.A. 6646 is a permissible restriction on the freedom of speech, of expression
and of the press.
Dissenting,
Justice Panganiban argues that advertising is the most effective means of
reaching voters. He adverts to a
manifestation of the COMELEC lawyer that the Commission “is not procuring
[Comelec Space] by virtue of the effects of the decision of this Honorable
Court in the case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA
272.”[31]
To be sure, this
Court did not hold in PPI v. COMELEC that it should not procure newspaper space for allocation to
candidates. What it ruled is that the
COMELEC cannot procure print space without paying just compensation. Whether by its manifestation the COMELEC
meant it is not going to buy print space or only that it will not require
newspapers to donate free of charge print space is not clear from the
manifestation. It is to be presumed
that the COMELEC, in accordance with its mandate under §11(b) of R.A. No. 6646
and §90 of the Omnibus Election Code, will procure print space for allocation
to candidates, paying just compensation to newspapers providing print space.
In any event,
the validity of a law cannot be made to depend on the faithful compliance of
those charged with its enforcement but by appropriate constitutional
provisions. There is a remedy for such
lapse if it should happen. In addition,
there is the COMELEC Time during which candidates may advertise themselves. Resolution No. 2983-A of the COMELEC
provides:
SEC. 2. Grant of “Comelec Time.” — Every radio broadcasting and television station operating under franchise shall grant the Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily, to be known as “Comelec Time”, effective February 10, 1998 for candidates for President, Vice-President and Senators, and effective March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasis added)
Failure of Legislative Remedy Bespeaks
of More than Congressional
Inaction
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[32] 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 bespeaks of more than inaction.
Test for
Content-Neutral Restrictions[33]
In Adiong v.
COMELEC[34] this Court quoted the following from the decision of
the U.S. Supreme Court in a case sustaining a Los Angeles City ordinance which
prohibited the posting of campaign signs on public property:
A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118[1984])[35]
This test was
actually formulated in United States v. O’Brien.[36] It is an appropriate test for restrictions
on speech which, like §11(b), are content-neutral. Unlike content-based restrictions, they are not imposed
because of the content of the speech. For this reason, content-neutral restrictions are tests demanding
standards. For example, a rule such as
that involved in Sanidad v. COMELEC,[37] prohibiting columnists, commentators, and announcers
from campaigning either for or against an issue in a plebiscite must have a
compelling reason to support it, or it will not pass muster under strict
scrutiny. These restrictions, it will
be seen, are censorial and therefore they bear a heavy presumption of
constitutional invalidity. In addition,
they will be tested for possible overbreadth and vagueness.
It is apparent
that these doctrines have no application to content-neutral regulations which,
like §11(b), are not concerned with the content of the speech. These regulations need only a substantial
governmental interest to support them.[38] A deferential standard of review
will suffice to test their validity.
Justice
Panganiban’s dissent invokes the clear-and-present-danger test and argues that
“media ads do not partake of the ‘real substantive evil’ that the state has a
right to prevent and that justifies the curtailment of the people’s cardinal
right to choose their means of expression and of access to information.” The
clear-and-present-danger test is not, however, a sovereign remedy for all free
speech problems. As has been pointed
out by a thoughtful student of constitutional law, it was originally formulated
for the criminal law and only later appropriated for free speech cases. For the criminal law is necessarily
concerned with the line at which innocent preparation ends and a guilty
conspiracy or attempt begins.[39] Clearly, it is inappropriate as a
test for determining the constitutional validity of laws which, like §11(b) of
R.A. No. 6646, are not concerned with the content of political ads but only
with their incidents. To apply the
clear-and-present-danger test to such regulatory measures would be like using a
sledgehammer to drive a nail when a regular hammer is all that is needed.
The reason for
this difference in the level of justification for the restriction of speech is
that content-based restrictions distort public debate, have improper motivation,
and are usually imposed because of fear of how people will react to a
particular speech. No such reasons
underlie content-neutral regulations, like regulations of time, place and
manner of holding public assemblies under B.P. Blg. 880, the Public Assembly
Act of 1985. Applying the O’Brien test in this case, we find that §11(b)
of R.A. No. 6646 is a valid exercise of the power of the State to regulate
media of communication or information for the purpose of ensuring equal
opportunity, time and space for political campaigns; that the regulation is
unrelated to the suppression of speech; that any restriction on freedom of expression is only incidental and no
more than is necessary to achieve the purpose of promoting equality.
________________
The Court is
just as profoundly aware as anyone else that discussion of public issues and
debate on the qualifications of candidates in an election are essential to the
proper functioning of the government established by our Constitution. But it is precisely with this awareness that
we think democratic efforts at reform should be seen for what they are: genuine efforts to enhance the political
process rather than infringements on freedom of expression. The statutory provision involved in this
case is part of the reform measures adopted in 1987 in the aftermath of
EDSA. A reform-minded Congress passed
bills which were consolidated into what is now R.A No. 6646 with near
unanimity. The House of
Representatives, of which petitioner Pablo P. Garcia was a distinguished
member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor, while the Senate
approved it 19-0. [40]
In his recent
book, The Irony of Free Speech, Owen Fiss speaks of “a truth that
is full of irony and contradiction: that the state can be both an enemy and a friend of speech; that it can
do terrible things to undermine democracy but some wonderful things to enhance
it as well.”[41] We hold R.A. No. 6646, §11(b) to be
such a democracy-enhancing measure. For Holmes’s marketplace of ideas can prove
to be nothing but a romantic illusion if the electoral process is badly skewed,
if not corrupted, by the unbridled use of money for campaign propaganda.
The petition is
DISMISSED.
SO ORDERED.
[1] As
petitioners filed their petition before they filed certificates of candidacy,
they assert an interest in this suit “as taxpayers and registered voters” and “as prospective
candidates.” Rollo, p. 6.
[2] 207 SCRA
1 (1992).
[3] Rollo,
p. 3.
[4] Art. III of the Constitution provides:
SEC. 4. 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.
A related provision states:
SEC. 7. 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.
[5] Rollo,
p. 17.
[6]
Memorandum for Petitioners, p. 21.
[7] Thus, this Court held in NPC v. COMELEC:
My learned
brother in the Court Cruz, J. remonstrates, however, that “[t]he financial
disparity among the candidates is a fact of life that cannot be corrected by
legislation except only by the limitation of their respective expenses to a
common maximum. The flaw in the
prohibition under challenge is that while the rich candidate is barred from
buying mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to his straitened rival.” True enough Section 11(b) does not, by
itself or in conjunction with Sections 90 and 92 of the Omnibus Election Code,
place political candidates on complete and perfect equality inter se without
regard to their financial affluence or lack thereof. But a regulatory measure that is less than perfectly
comprehensive or which does to completely obliterate the evil sought to be
remedied, is not for that reason alone constitutionally infirm. The Constitution does not, as it cannot,
exact perfection in government regulation. All it requires, in accepted doctrine, is that the regulatory measure
under challenge bear a reasonable nexus with the constitutionally sanctioned
objective. That the supervision or
regulation of communication and information media is not, in itself, a
forbidden modality is made clear by the Constitution itself in Article
IX(C)(4). 207 SCRA at 14.
[8]
Answer-in-Intervention, p. 2.
[9] Philippine Trust Co. v. Mitchell, 50
Phil. 30 (1927); Kilosbayan v. Morato, 246 SCRA 540 (1995).
[10] 207 SCRA 1, 13-14 (1992).
[11] 35 SCRA
285 (1970).
[12] 207 SCRA
712 (1992).
[13] Id. at 720.
[14] Id. at
722.
[15] 36 SCRA
228 (1970).
[16] Sanidad v.
COMELEC, 181 SCRA 529 (1990).
[17] In Philippine
Press Institute v. COMELEC, 244 SCRA 272 (1995), we held that for space
acquired in newspapers the COMELEC must pay just compensation. Whether there is a similar duty to
compensate for acquiring air time from broadcast media is the question raised
in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC,
G.R. No. 132922, now pending before this Court.
[18] 447 U.S. 74, 64 L.Ed2d 741 (1980).
[19] See, e.g., J.
B. L. Reyes v. Bagatsing, 125 SCRA 553 (1983); Navarro v.
Villegas, 31 SCRA 730 (1970); Ignacio v.
Ela, 99 Phil. 346 (1956); Primicias v. Fugoso, 80 Phil. 71 (1948).
[20] 27 SCRA 835 (1969).
[21] Res.,
G.R. No. 73551, Feb. 11, 1988.
[22] Memorandum for Petitioners, p. 10.
[23] Id., p. 11.
[24] 207 SCRA at 7 (emphasis by petitioners).
[25] Ibid.
[26] 424 U.S.
1, 48-49, 46 L.Ed. 659, 704-705 (1976). The Solicitor General also quotes this statement and says it is “highly
persuasive in this jurisdiction.” Memorandum of the OSG, p. 27.
[27] R.A. No.
7166, §13; OEC, §100.
[28] See Macias v.
COMELEC, 113 Phil. 1 (1961).
[29] 1 RECORD
OF THE 1986 CONSTITUTIONAL COMMISSION 624, Session of July 16, 1986.
[30] Gonzales v.
COMELEC, 27 SCRA 835 (1969).
[31] Compliance,
p. 4.
[32] The bills
are S. Nos. 178, 595, 856, 1177 and 1224, which were consolidated into S. No.
2104.
[33] For
helpful discussion of the distinction between content-based and content-neutral
regulations, see generally GEOFFREY R. STONE, LOUIS M. SEIDMAN, CASS R.
SUNSTEIN, AND MARK V. TUSHNET, CONSTITUTIONAL LAW 1086-1087, 1172-1183,
1323-1334 (1996); GERALD GUNTHER AND KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW
1203-1212 (1997); Geoffrey R. Stone, Content-Neutral Restrictions, 54
Univ. of Chi. Law Rev. 46 (1987).
[34] 207 SCRA
712 (1992).
[35] Id. at 718
(internal quotations omitted).
[36] 391 U.S.
367, 20 L.Ed.2d 672 (1968).
[37] 181 SCRA
529 (1990).
[38] See,
e.g., Primicias v. Fugoso, 80 Phil. 71 (1948).
[39] PAUL A. FREUND,
ON UNDERSTANDING THE SUPREME COURT 25-26 (1949).
[40] 4 RECORD
OF THE HOUSE OF REPRESENTATIVES 261 (Dec. 14, 1987); 1 RECORD OF THE SENATE
1644 (Oct. 19, 1987) .
[41] THE IRONY
OF FREE SPEECH 83 (1996).
DISSENTING OPINION
PANGANIBAN, J.:
The Court, by
majority vote, decided to uphold the ban on political advertising, as provided
under Section 11(b)[1] of RA 6646, and to reiterate the
1992 ruling in National Press Club vs. Comelec[2] for two main reasons:
1. To equalize "as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign 'war chests.'" In other words, the intention of the prohibition is to equalize the "political playing field" for rich and poor candidates.
2. While conceding that Section 11(b) of RA 6646 "limit[s] the right of free speech and of access to mass media of the candidate themselves," the Court justifies the ad ban by alleging that: (a) it is limited, first, in its "duration," (i.e. the ban applies only during the "election period") and, second, in its "scope" (i.e. the prohibition on the sale and the donation of print space and air time covers only those for "campaign and other political purposes" and does not restrict the legitimate reporting of news and opinions by media practitioners who are not candidates); and (b) the Comelec is authorized to procure, by purchase or donation, media time and space which are to be fairly, freely and equally distributed among the candidates. Otherwise stated, the grant of Comelec time and space, free of charge, to said candidate makes up for admitted infringement of the constitutional right to free speech and access to mass media during the campaign period.
With all due respect, I disagree with the majority's view and join the stirring Dissenting Opinions of Justice Hugo E. Gutierrez, Jr.,[3] Isagani A. Cruz[4] and Edgardo L. Paras[5] in NPC vs. Comelec, and of Justice Flerida Ruth Romero in the present case. I will no longer repeat their cogent legal arguments. Let me just add my own.
1. Ad Ban Not Pro-Poor
But Anti-Poor
The majority
argues that the ad ban is pro-poor, because it prevents the rich from buying
media time and space which the poor cannot afford or match. This argument assumes that media advertising
is expensive and, thus, beyond the
reach of the poor.
I respectfully
submit that such argument is bereft of factual basis. True, a full-page ad in a major broadsheet[6] may be priced at about P100,000,
a 30-second commercial in a major television,[7]7 anywhere from P15,000 to P90,000 depending on the time and
the program; while airtime of an equal duration in a radio station, anywhere
from P300 to P4,500.[8]8 But even with such price tags,
media ads are not necessarily expensive, considering their nationwide reach,
audience penetration, effectiveness and persuasive value.
Realistically, expenses are
involved in a candidacy for a national office like the presidency, the vice-presidency, and the senate. In recognition of this, the law has limited
campaign expenditures to ten pesos (P10) for every voter in the case of
candidates for president and vice-president, and three pesos (P3) per
voter in their constituencies, for other candidates.[9]`Sec. 100 Limitations upon expenses of
candidates.- Authorized Expenses of Candidates and Political Parties. - The
aggregate 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 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.
Any provision of law to the
contrary notwithstanding, any contribution in cash or in kind to any candidate
or political party or coalition of parties for campaign purposes, duly reported
to the Commission, shall not be subject to the payment of any gift tax."9 Anyone - whether rich or poor - who aspires for such national elective
office must expect to spend a considerable sum, whether of his own or from
allowable donations, to make himself and his platform or program of government
known to the voting public.
Media Ads
Comparatively
Cheaper
While a one-page
black-and-white ad in a major daily costs about P100,000, it is replicated,
however, in about 250,000 copies[10]10 circulated to an equal number of offices and households nationwide on
the very same day of its publication. Each newspaper copy has an average readership of six. Hence, the ad is exposed to about 1.5
million (250,000 x 6) people all over the country. Consider, too, the people discuss what they read while they
congregate in barber shops, corner stores, and other places where people gather. Sometimes, radio and tv broadcasters pick up
and comment on what they read on newspapers. So, the reach, pass-on readership, multiplier effect and effectivity of
a broadsheet ad are practically immeasurable.
On the other
hand, let us consider the alternative of printing and distributing a poster or
handbill of similar size. The actual
printing cost of such handbill on newsprint is twenty centavos (P.20)
per copy.[11]11 The cost of 250,000 copies (the circulation of a major daily) would thus
be P50,000 (250,000 x P.20). But that is only the printing cost. To disseminate these handbills nationwide on the same day of printing
without the distribution network of a major newspaper is almost
impossible. Besides, the cost would be
horrendous. To approximate the circulation of a major newspaper is
almost impossible. Besides, the cost
would be horrendous. To approximate the
circulation of a major newspaper, the most practical substitute would be the
mails. Ordinary mail is now P4.00
per posting. Hence, the distribution
cost through the mails would be P1 million (250,000 x P4.00). And this does not include the manual work
and cost of sorting, folding and individually addressing these 250,000 pieces
of mail matter. (This alternative
assumes the availability of a mailing list equivalent to the reach of a
newspaper.) Even if third-class mail is
used, the distribution cost alone will still be P3.00 per individual
mailing, or P750,000 for all 250,000 copies.[12]12
This alternative
is not only much more expensive but much less effective as well, because it has
no guarantee of same-day delivery, has a diminished readership multiplier
effect and is tremendously cumbersome in terms of sorting and distribution.
Furthermore, a
candidate need not buy one-page ads. He
can use quarter page ads at one fourth the cost or about P25,000 only
per issue. To be effective in his ad
campaign, he may need to come out once every three days (to be spread out among
the different dailies) or 30 times during the 90-day campaign period[13]13 for national candidates. Hence, he will spend, for the entire
duration of the campaign, about P750,000 (P250,000 x 30). I repeat, to advertise a one-fourth page ad
at least 30 times in various major dailies, a candidate needs to spend only P750,000
- an amount less than the alternative of printing and distributing nationwide
ONLY ONCE a less timely and less effective equivalent leaflet or poster.
A similar
detailed comparison of cost-benefit could be written for radio and
television. While, at the initial
glance, the rates for these electronic media may appear high, still they could
be proven more beneficial and cheaper in the long term because of their
"value-for-money" appeal.[14]vs. Dans Jr., 137 SCRA 628, 635-636,
July 19, 1985, through Justice Hugo E. Gutierrez Jr., described the pervasive
effect of broadcast media in the wise:
"The broadcast media
have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspaper and current books
are found only in metropolitan areas and in the pablaciones of municipalities
accessible to fast and regular transportation. Even here there are low income masses who find the cost of books, newspaper, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor
radio is found everywhere. the
television set is also becoming universal. Their message may be simultaneously received by a national or regional
audience of listeners including the indifferent or unwilling who happen to be
within the reach of a blaring radio or television set. The materials broadcast over the airwaves
reach every person of every age, persons of varying susceptibilities to
persuasion, persons of different I.Q.s and mental capabilities, persons whose
reactions to inflammatory or offensive speech would be difficult to monitor or
predict. The impact of the vibrant
speech is forceful and immediate. x x
x"14
Candidates Should Not Be Denied
Option to Use
Media Ads.
From the
foregoing, it is clear that mass media truly offers an economical, practical,
and effective means by which a relatively unknown but well-qualified political candidate who has limited
resources, particularly one running for a national office, may make known to
the general public during the short campaign period[15]15 his qualifications, platform of
government, stand on vital issues, as well as his responses to questions or
doubts about his capabilities, his character or any other matter raised against
him. Deprived of media ads, the rich
candidate, unlike his poor opponent, resorts to expensive propaganda - the
holding of public meetings and rallies before large but oftentimes
"paid" crowds, helicopter stops and motorcades spanning several towns and cities, the production of
ingenious materials, giveaways and other products, and the incessant printing
and distribution of various campaign paraphernalia. These forms of electoral promotion ineluctably require a large
political machinery and gargantuan funds (organization + people / supporters +
communication gadgets + vehicles + logistics). To combat this formidable and expensive election behemoth, the poor candidate's most viable
alternative may be media advertising.
In NPC vs.
Comelec, it was feared that the "unlimited purchase of print space and
radio and television time x x x by the financially affluent [was] likely to
make a crucial difference." But I
say such fear is unfounded. First,
because campaign expenses are limited by law, Second, the possibility of the abuse and misuse of media ads by the
"financially affluent" is not an argument in favor of their total
withdrawal, for - to use the very words of the majority in NPC - "there is
no power or authority in human society that is not susceptible of being
abused."[16] Third, the absence of access to
media advertising totally deprives the poor candidate of his most formidable
weapon in combating the "huge campaign war chests" of rich
contenders.
THE POINT
IS: IT IS INCORRECT TO SAY THAT MEDIA
ADVERTISING SHOULD BE BANNED BECAUSE ONLY THE RICH CAN AFFORD IT OR FOR THAT
MATTER, THEY MAY ABUSE OR MISUSE IT. Quite the contrary, in terms of reach, pass-on readership, multiplier
effect and cost-benefit advantage, media advertising may be the cheapest and
most effective campaign mechanism available. I am not suggesting that every candidate shuld use media ads. In the final analysis, it is really up to the
candidates and their campaign handlers to adopt such mode and means of
campaigning as their budgets and political strategies may require16a16a
What I am stressing is that the candidates, whether rich or poor, should be
given the option of campaigning through media, instead of being forced to use
other forms of propaganda that could turn out to be less effective and more
expensive.
2. Ad Ban Not Limited;
Comelec Time and Space Inutile
I now come to
the second major point. The majority
rationalizes the ad ban by saying that it has a very limited duration and scope
and that, in any event, the Comelec's grant of free media time and space to
candidates more than makes up for the violation of their constitutional
right. I disagree.
Ad Ban Not
Limited in
Duration
The ad ban is
constitutional because, according to the majority, it is limited in duration
for the reason that it is enforced only during the election period. In my humble view and with all due respect,
this is both erroneous and illogical. A
political advertisement is relevant only during the campaign period - not
before and not after. As petitioners
put it, a ban on mountain-skiing during the winter season cannot be said to be
limited in duration, just because it is enforced during winter. After all, skiing is indulged in only when
the mountain slopes are covered with snow. To add a further parallel, a ban against the planting of rice during the
rainy season is not limited simply because it covers only that season. After all, nobody plants rice during summer
when the soil is parched. In the same
manner, campaign ads are not resorted to except during the campaign
period. And their prohibition does not
become any less odious and less comprehensive just because the proscription
applies only during the election season. Obviously, candidates need to advertise their qualifications and
platforms only during such period. Properly understood, therefore, the prohibition is not limited in
duration but is in fact and in truth total, complete and exhaustive.
Ad Ban Neither
Limited in Scope
The majority
also claims that the prohibition is reasonable because it is limited in scope;
that is, it refers only to the purchase, sale or donation of print space and
air time for "campaign or other political purposes" and does not
restrict news reporting and commentaries by editors, columnists, reporters, and
broadcasters. But the issue here is not
the freedom of media professionals.[17] The issue is the freedom of expression of candidates. That the freedom of the press is respected
by the law and by the Comelec is not a reason to trample upon the candidates'
constitutional right to free speech and the people's right to information. In this light, the majority's contention is
a clear case of non sequitor. Media ads do not partake of the "real substantive evil"
that the state has a right to prevent[18] and that justifies the curtailment
of the people's cardinal right to choose their means of expression and of
access to information.
Besides, what constitutes
"campaign or other political purposes"? Neither RA 6646 nor the majority provides an explanation. If candidates buy 30 column-inches of
newspaper space or one hour of prime radio/tv time everyday, and if they retain
professional journalists to use such space/time to defend them from attacks and
to promote their platforms of government, should such purchase be covered by
the ad ban, or should it be allowed as an exercise of the freedom of journalist
to express their views? Even more
insidiously, should regular columnists' daily defense of their chosen
candidates and daily promotion of their platforms of government constitute
donated space for "campaign and other political purposes"?[19]
Ad Ban Not Compensated for or
Justified by Free
"Comelec Time"
Finally, the
majority opines that the grant of free Comelec media time and space to candidates
more than makes up for the abridgment of the latter's right to buy political
ads.[20]:
"Plebiscite issues are
matters of public concern and importance. The people's right to be informed and to be able to freely and
intelligently make a decision would be better served by access to an unabridged
discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite should not
be unduly burdened by restrictions on the forum where the right to expression
may be exercised. Comelec spaces and
Comelec radio time may provude a forum for expression but they do not guarantee
full dissemination of information to the public concerned because they are
limited to either specific portions in newspaper or to specific radio or television
times" (Empahasis ours.)20 With due respect, I believe
this is hollow and shallow.
In its Compliance dated March 13,
1998, Comelec tells us that under its Resolution No. 3015, it gave due course
to eleven candidates for president[21] nine for
vice president,[22] and forty for senators.[23] It is claimed however that, all in
all, there are really about 100,000 candidates running for about 17,000
national and local positions in the coming elections, from whom a voter is
expected to choose at least 30[24] to vote for. With so many candidates, how can the
ordinary, sometimes nonchalant, voter ever get to know each of the political
hopefuls from whom he will make an intelligent selection? In the crucial choice of president alone,
how can ordinary citizens intelligently and sufficiently assess each of the 11
candidates in order to make a sensible choice for a leader upon whom to entrust
the momentous responsibility of carving the country's path in the next
millenium?
The Comelec
answers these questions with Resolution No. 2983-A, promulgated on March 3,
1998, in which it asks "every radio broadcasting and television station
operating under franchise [to] grant the Commission, upon payment of just
compensation, at least thirty (30)
minutes of prime time daily, to be known as 'Comelec Time' effective February
10, 1998 for candidates for President, Vice President and Senators, and
effective March 27, 1998 for candidates for local elective offices, until May
9, 1998," to be allocated "by lottery" among candidates requesting
its use. But Comelec, in the same
Compliance, informed the Court that "it is not procuring 'Comelec Space'
(in any newspaper) by virtue of the effects of the decision of this Honorable
Court in the case of Philippines Press Institute (PPI) vs. Comelec, 224
SCRA 272."[25]25
In sum, the
Comelec intends to secure 30 minutes of "Comelec time" for every
radio and broadcasting station to be allocated equally to all candidates. The Comelec does not state exactly how it
intends to allocate - except "by lottery" - these 30 minutes per
station to the 17,000 candidates, considering that these stations do not have
the same reach, audience and penetration. The poll body does not say exactly how many stations are involved, what
budget allocation, if any, it has for the purpose,[26]26 when each candidate will be
allowed to speak and for how long, how the Comelec intends to cover the 77
provinces, 68 cities and 42,000 barangay nationwide, and many other
details. Moreover, while the Comelec
smugly speaks of free Comelec time being effective on "February 10,
1998" for national candidates, Resolution 2983-A itself was promulgated
only on March 3, 1998.
Up to this
writing, I have yet to hear of any major candidate using this so-called free Comelec broadcast time. In fact, during the oral argument of this
case on March 5, 1998, Comelec Chairman Bernardo P. Pardo frankly admitted that
no candidate had applied for an allocation of Comelec time. Not even petitioners. This is the best testament to the utter
inutility and ineffectivity of Comelec time. Indeed, it cannot be a substitute, much less a viable alternative, to
freely chosen but paid for media ads. It cannot compensate for the violation of the candidates' right to free
speech and media access, or for the electorate's right to information.
If the real
objective is to level the playing field for rich and poor candidates, there
must be, as there already are, a cap on election expenses and a shortening of
the campaign period. The incapability
of the Comelec to effectively monitor and strictly implement such expense and
time limitations should not take its toll upon constitutionally enshrined
liberties of the people, including the candidates. To prohibit access to mass media, except only through Comelec
time -- which has been indubitably shown to be sorely insubstantial,
insignificant and inutile -- is not, and is far from being, a solution
to the problems faced by poor candidates. The simple remedy is to lift the media ban.
Epilogue
The ad ban is a
blatant violation of the candidates' constitutional right to free speech[27] and the people's right to
information.[28] Being the last refuge of the people
and the guardian of the Constitution, this Court should then, with alacrity,
view the ban with suspicion, if not with outright rejection.[29] To repeat, the alleged limitations
are in reality nonexisten;t and the "pro-poor" justification, without
logic.
To say that the
prohibition levels the playing field for the rich and the poor is to indulge in
a theoretical assumption totally devoid of factual basis. On the contrary, media advertising may be --
depending on a contender's propaganda strategy -- the cheapest, most practical
and most effective campaign medium, especially for national candidates. By completely denying this medium to both
the rich and the poor, this Court has not leveled the playing field. It has effectively abolished it! Far from equalizing campaign opportunities,
the ban on media advertising actually favors the rich (and the popular) who can
afford the more expensive and burdensome forms of propaganda, against the poor
(and the unknown) who cannot.
The allegation
that the prohibition is reasonable because it is limited in duration and scope
is itself most unreasonable, bereft as it is of logic and basis. Even more shallow is the argument that the
Comelec-given media time and space compensate for such abridgment. In fact, the Comelec is not even procuring
any newspaper space. In any event, the
fact that not even the poorest candidates have applied for available opportunities
is the best testament to its dubiousness. That petitioners who are seasoned political leaders prefer to pay for
their own media ads rather than to avail themselves of the Comelec freebies
refutes the majority's thesis of compensation. Indeed, the free things in life are not always the best.[30] They may just be bureaucratic waste
of resources.
Before I close,
a word about stare decisis. In
the present case, the Court is maintaining the ad ban to be consistent with its
previous holding in NPC vs. Comelec. Thus, respondent urges reverence for the stability of judicial
doctrines. I submit, however, the more
important than consistency and stability are the verity, integrity and
correctness of jurisprudence. As Dean
Roscoe Pound explains, "Law must be stable but it cannot stand
still." Verily, it must correct
itself and move in cadence with the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme Court, in many cases,[31] has deviated from stare decisis
and reversed previous doctrines and decisions. It should do no less in the present case.
Elections can be
free, honest and credible not only because of the absence of the three
execrable "G's" or "guns, goons, and gold." Beyond this, the integrity and effectivity
of electoral democracy depend upon the availability of information and
education touching on the three good "P's" - principles, platforms
and program of the candidates. Indeed,
an intelligent vote presupposes a well-informed voter. If elections must be rid of patronage,
personalities and popularity as the main criteria of the people's choice, we
must allow candidates every opportunity to educate the voters. And corollarily, the people must be accorded
every access to such information without much effort and expense on their part.
With all due
respect, I submit that the ad ban is regressive, repressive and deceptive. It has no place in our constitutional
democracy.
WHEREFORE, I
vote to GRANT the petition and to CONDEMN Section 11(b) of RA 6646 as
UNCONSTITUTIONAL and VOID.
[1] "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
x x x x x
b) for any
newspaper, radio broadcasting or television station, other mass media or any
person making use of the mass media to sell or 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 who is a candidate for any elective public office shall take a leave
of absence from his work as such during the campaign period."
[2] 207 SCRA 1,
March 5, 1992, per Feliciano, J.
[3] Ibid., pp. 28-30. The following are excerpts:
"Sec.
11(b) of R.A. No. 6646 will certainly achieve one result - keep the voters
ignorant of who the candidates are and what they stand for."
"The
implementation of Section 11(b) will result in gross inequality. A cabinet member, an incumbent official, a
movie star, a basketball player, or a conspicuous clown enjoys an affair
advantage over a candidate many times better qualified but less known."
"x x
x We owe it to the masses to open all forms of communication to them during
this limited campaign period. A
candidate to whom columnists and radio-television commentators owe past favors
or who share their personal biases and convictions will get an undue amount of
publicity. Those who incur the ire of
opinion makers cannot counteract negative reporting by buying his own
newspapers space or airtime for the airing of his refutations."
"Section
11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed during the
limited period of the election campaign when information is most needed. x x
x"
[4]
Ibid., pp. 31-43.
I quote significant, enlightening portions as follows:
"The
citizen can articulate his views, for whatever they may be through the many
methods by which ideas are communicated from mind to mind. Thus, he may speak or write or sing or
dance, for all these are forms of expression protected by the Constitution. So is silence, which 'persuades when
speaking fails.'
x x x The individual can convey his message in a poem or a
novel or a tract or in a public speech or through a moving picture or a stage
play. In such diverse ways may he be
heard. There is no of course no
guaranty that he will be heeded, for acceptability will depend on the quality
of his thoughts and of his person, as well as the mood motivation of his
audience. But whatever form he employs,
he is entitled to the protection of the Constitution against any attempt to
muzzle his thoughts."
It is for the
purpose of properly informing the electorate of the credentials and platforms
of the candidates that they are allowed to campaign during the election period.
x x x
It is
curious, however, that such allowable campaign activities do not include the
use of the mass media because of the prohibition is Section 11(b) of Rep. Act
No. 6646 x x x"
"The
lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to
prevent disparity between the rich and the poor candidates by denying both of
them access to the mass media and thus preventing the former from enjoying and
undue advantage over the latter. There
is no question that this is a laudible goal. Equality among the candidates in this regard should be assiduously
pursued by the government if the aspirant with limited resources is to have any
chance at all against an opulent opponent who will not hesitate to use his
wealth to make up for his lack of competence.
To pursue a
lawful objective, only a lawful method may be employed even if it may not be
the best among the suggested options. In my own view, the method here applied falls far short of the
constitutional criterion. I believe
that the necessary reasonable link between the means employed and the purpose
sought to be achieved has not been
proved and that the method employed is unduly oppressive."
"But the
most important objection to Section11(b) is that it constitutes prior restraint
on the dissemination of ideas. In a
word, it is censorship . It is
that officious functionary of the repressive government who tells he citizen
that he may speak only if allowed to do so, and no more and no less than what
he is permitted to sy on pain of punishment should he be so rash to
disobey."
"I
remind the Court of doctrine announced in Bantam Books v. Sullivan tha
tany sustem of prior restraint of expression comes to this Court bearing a
heavy presumption against its validity. That presumption has not been refuted in the cases subjudice. On the contrary, the challenged provision appears
quite clearly to be invalid on the face because of its undisguised attempt at
censorship. The feeble effort to
justify it in the name of social justice and clean elections cannot prevail
over the self-evident fact that what we have here is an illegal intent to
suppress free speech by denying access to the mass media as the most convinient
instruments of the molding of public opinion. And it does not matter that the use of these facilities my involve
financial transactions, for the element of hte commercial does not remove them
from the protection of the Constitution."
"I
submit thatall the channels of communication should be kept open to insure the
widest dissemination of information learning on the forthcoming election. An uninformed electorate is not likely to
circumspect in the choice of official who will represent them in councils of
government. That they may exercise
their suffrage wisely, it is important thay be apprised of the election issues,
including the credentials, if any, of the various aspirants for public
office. This is especially necessary
now in view of the dismaying number of mediocirties who by an incredible
aberration of ego, are relying on their money, or their tinsel popularity, or
their private armies, to give them the plum of victory.
For violating
the liberty to know, to utter and to argue freely according to conscience,
above all liberties, the challenged law must be struck down. For blandly sustaining it instead, the
majority has inflicted a deep cut on the Constitution that will ruthlessly
bleed it white, and with it this most cherished of our freedoms."
[5] Ibid., pp. 43-44, where he said in this part:
"The
freedom to advertise one's political candidacy in the various forms of media is
clearly a significant part of our freedom of expression and of our right of
access to information. Freedom of
expression in turn includes among other things, freedom of speech and freedom
of the press. Restrict these freedoms
without rhyme or reason, and you violate the most valuable feature of the
democratic way of life.
The majority
says that the purpose of the political advertisement provision is to prevent
those who have much money from completely overwhelming those who have
little. This is gross error because
should the campaign for votes be carried out in other fora (for example,
rallies and meetings) the rich candidate can always be at a great advantage
over his less fortunate opponent. And
so the disparity feared will likewise appeared in campaigns other than through
media. x x x"
[6] Like the Philippine Daily Inquirer, the
Manila Bulletin and the Philippine Star.
[7] Like ABS-CBN Channel 2 or GMA Channel 7
[8] Petition in Intervention, p. 28.
[9] Sec. 100. BP Blg. 881, as amended by Sec.
13, RA 7166, which provides:
[10] This is the claimed circulation of the three
major broadsheets - Philippine Daily Inquirer, Manila Bulletin and Philippine
Star.
[11] This is the present cost actually paid by a
major broadsheet for every page of printing, including the paper and the ink
used. Commercial printing presses
actually charge 3 to 4 times this amount for posters smaller than a one-page
newspaper ad.
[12] The cost is P3 for the first 50 grams in
bulk mailing, a method which would entail add-on for the materials to reach the
individual voters. Hence, to factor out
these add-on costs while approximating the reach of a newspaper, the cost of
mailing by piece was computed instead.
[13] Sec. 3 BP. Blg. 881, as amended by Sec. 5,
RA 7166.
[14] The Court, in Eastern Broadcasting Corp.
[15] 90 days for candidates for president, vice
president and senator, and 45 days for the other elective positions (Sec. 3, BP
Blg. 881, as amended by Sec. 5, RA 7166).
[16] In national Press Club, supra, at pp. 12-13, the Court gives this argument:
"It seems appropriate here to recall what Justice
Laurel taught in Angara v. Electoral Commission [63 phil 139, 177
(1936)] that the possibility of abuse is no argument against the concession of
the power or authority involved, for there is no power or authority in human society
that is not susceptible of being abused."
16a In his column in the
Manila Standard on March 30, 1998 entitled "A survey about political
ads," Mahar Mangahas, president of the Social Weather Stations, explains
why "it pays to advertise" political candidates, "judging from
the results of the Social Weather Stations survey of Feb. 21-27,
1998." Interestingly, the SWS
survey showed that the 1998 political ads best recalled by the public were
those of the two leading candidates -- Joseph Estrada (55%) and Alfredo Lim
(54%) - followed by Jose de Venecia (37%), Lito Osmeña (35%), Renato de Villa
(19%), Raul Roco (11%), Miriam Defensor Santiago (9%), Imelda Marcos (3%), and
Juan Ponce Enrile (2%). Interestingly
also, the topnotchers in the ad survey cannot be termed "rich" nor
the bottom dwellers, "poor," thereby reinforcing my thesis that the
effectiveness of political ads is not dependent on financial fortunes. Rather, political ads are complementary to
the overall political strategy of each candidate.
[17] This specific issue has been resolved in Standard v.
Comelec, 181 SCRA 529, January 29, 1998, per medialdea, J., whre the
Court ruled:
"However, neither Article IX-C of the Constitution
[Comelec's power to supervise and regulate the operation of public utilities
and the mass media during the election period] nor Sec. 11 (b) 2nd par of RA
6646 can be construed to mean that the Comelec has also been granted the right
to supervise and regulate the exercise by media practitioners themselves of
their right to expression during the plebiscite periods. Media practitioners are neither the
franchise holders nor the candidates. x
x x Therefore Section 19 of Comelec Resolution No. 2167 [prohibiting
columnists, commentators or announcers to use their column, radio or TV time ti
campaign for or against plebiscite issues] has no statutory basis.
x x x x x x x
x x
Anent respondent Comelec's argument that Section 19 of
Comelec Resolution No. 2167 does not absolutely bar petitioner-columnist from
expressing his views and/or from campaigning for or against the organic act
because he may do so through the Comelec space and/or Comelec radio/television
time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of
expression, it is a restriction on his choice of the forum where he may
express his views. No reason was
advanced by respondent to justify such abridgment. We hold that this form of regulation is tantamount to a restriction
of petitioner's freedom of expression for no justifiable reason." [Italics
in the original]
[18] Using the "clear and present danger
test" as enunciated in Gonzales vs. Comelec,
27 SCRA 835, 877, April 18, 1969, per Fernando, J., citing Schenk v.
United States, 249 US 47, 52, 63 L. ed. 470, 473-474 (1919); Whitney v.
California, 247 US 357, 373, 71 L. ed. 192, 202-203 (1927); Dennis v.
United States, 341 US 494, 510, 95 L. ed. 1137, 1153 (1950); and several oter
cases. See also Primicias vs.
Fugoso, 80 Phil 71, 87-88, Jnauary 27, 1948, per Feria, J., Adiong vs.
Comelec, 207 SCRA 712, 715, March 31, 1992, per Gutierrez Jr., J.,
Eastern Broadcasting Corp. vs. Dans Jr., supra.
[19] "PPI appeals to media companies not to
sell space, air time to pols," Philippine Daily Inquirer, March 5,
1998. The following are excerpts:
"The appeal was made as the PPI expressed `grave
concern and alarm over the overnight proliferation of `fly-by-night' newspaper
who take advantage of the political campaign season for racketeering
"The institute is dismayed by the reported abdication
by a number of media owners and editors of their journalistic responsibilities
by selling their editorial pages and air time to political canfifates, PPI
executive director Ermin Garcia said in a statement"
See also " Ad ban worsens corruption in media,
"Philippine Daily Inquirer, March 31, 1998, which reads in part:
"A Media officer of a candidate revealed that in one
national daily, the going price for a page one photo is P5,000. The reporter who acts as broker gets P1,000,
the editor who puts it out gets P4,000. That s cheaper than the price of an equivalent column space for
advertisement in the inside pages.
A presidential candidate's photo on the front page fetches
P15,000, while for a senatorial candidate it is P10,000.
A banner story costs P25,000. A front page above the fold costs P20,000. A small press release costs P5,000."
[20] In contrast, this was what the Court said in
unanimity in Standard, supra
[21]"1.
Jose C. De Venecia, Jr. -- LAKAS-NUCD UDMP
2. Renato S. De Villa -- Partido para sa Demokratikong
Reporma/Lapiang Manggagawa
Coalition
3. Santiago F. Dumlao, Jr. -- Kilusan para sa Pambansang
Pagpapanibago
4. Juan Ponce Enrile -- Independent (LP)
5. Joseph E. Estrada -- Partido ng Masang Pilipino -
LAMMP
6. Alfredo S. Lim -- Liberal Party
7. Imelda R. Marcos -- Kilusan Bagong Lipunan
8. Manuel L. Morato -- Partido Bansang Marangal
9. Emilio R. Osmeña -- Progressive Movement for
Devolution of Initiative Political
Party of Central Visayas
10. Raul S> Roco -- Aksyon Demokratiko
11. Miriam Defensor Santiago -- People's Reform Party"21
[22]22"1.
Edgardo J. Angara -- LDP/LAMMP Coalition
2. Gloria Macapagal-Arroyo -- LAKAS-NUCD UMDP
3. Oscar M. Orbos -- PDR-LM
4. Sergio Osmeña III -- Liberal Party
5. Reynaldo R. Pacheco -- KPP
6. Camilo L. Sabio -- Partido Bansang
Marangal
7. Irene M. Santiago -- Aksyon Demokratiko
8. Ismael D. Sueño -- PROMDI
9. Francisco S. Tatad -- People's Reform Party
[23]"1.
Lisandro C. Abadia -- LAKAS-NUCD UMDP
2. Rolando R. Andaya -- LAKAS-NUCD UMDP
3. Teresa Aquino-Oreta -- LDP/LAMMP Coalition
4. Luduvico D. Badoy -- KPP
5. Ramon S. Bagatsing, Jr. -- LDP/LAMMP Coalotion
6. Robert Z. Barbers -- LAKAS-NUCD UMDP
7. Rodolfo G. Biazon -- LDP/LAMMP Coalition
8. Eduardo D. Bondoc -- KPP
9. David M. Castro -- KPP
10. Renato L. Cayetano -- LAKAS-NUCD UMDP
11. Raul A. Daza -- LIBERAL PARTY
12. Roberto F. De Ocampo -- LAKAS-NUCD UMDP
13. Renato B. Garcia -- KPP
14. Adolfo R. Geronimo -- PDR-LM Coalition
15. Ricardo T. Gloria -- LAKAS-NUCD UMDP
16. Teofisto T. Guingona -- LAKAS-NUCD UMDP
17. Abraham S. Inbani -- PDR/LM Coalition
18. Robert S. Jaworski -- LAMMP
19. Fidel C. Lagman -- LAMMP
20. Reynante M. Langit -- PDR/LM Coalition
21. Loren B. Legarda-Leviste -- LKAS-NUCD UMDP
22. Oliver O. Lozano -- INDEPENDENT
23. Fred Henry V. Marallag -- KPP
24. Blas F. Ople -- PMP-LAMMP Coalition
25. John Reinner Osmeña -- NPC/LAMMP
26. Roberto M. Pagdanganan -- LAKAS-NUCD UMDP
27. Charito B. PLaza -- LIBERAL PARTY
28. Hernando B. Perez -- LAKAS-NUCD UMDP
29. Aquilino Q. Pimentel -- LAMMP(PDP/LABAN)
30. Santanina C.T. Rasul -- LAKAS-NUCD UMDP
31. Ramon B. Revilla -- LAKAS-NUCD UMDP
32. Miguel Luis R.Romero -- LAMMP
33. Roberto S. Sebastian -- PDR-LM Coalition
34. Roy B. Señeres -- PDR-LM Coalition
35. Vicente C. Sotto III -- LDP/LAMMP Coalition
36. Hadja Putri Zorayda -- PDR-LM Coalition
A. Tamano
37. Ruben T. Torres -- LAMMP
38. Jose M. Villegas, Jr. -- LM (Workers Party) /
PDR
39. Freddie N. Webb -- LDP/LAMMP
40. Haydee B. Yorac -- Independent"
[24]. 1 each for president, vice president,
congressman, governor, vice governor, mayor and vice mayor, 12 for senator, at
least 5 for Sangguniang Panlalawigan members; also at least 5
for Sangguniang Bayan/Panlungsod members; and 1 for party list representatives.
[25] Compliance dated March 13, 1998, p. 4
[26] The Comelec has not even paid the per diem
and allowances of the public school teachers who served during the last
barangay elections. How can it expect
to pay for the Comelec TV and radio time? (Memorandum of Petitioners-in-Intervention, p. 33.)
[27] Article III of the Constitution provides:
"Sec 4 No law shall be passed abridging the freedom of
speech of expression or of the press, or the people peaceably to assemble and
petition the government for redness of grievances"
[28] Article III of the Constitution also
provides:
"Sec 7 The right of the people to information on
matters of oublic 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."
[29] The time-honored doctrine against prior
restraint is stated in New York Times v. United
States, 403 US 713 (1971), which has been invariably applied in our
jurisdiction, in this wise: "Any
system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity." The Government `thus carries a heavy burden
of showing justification for the enforcement of such a restraint."' (Bernas, The Commission of the Republic
of the Philippines, 1987 ed., Vol. I., p. 142.)
[30] With apologies to Lew Brown and Buddy
(George Gard) De Sylvia, "the Best Things in Life Are Free," Good
News, 1927, as quoted by John Bartlett in Bartlett's Familiar Quotations,
1980 ed., p. 825.
[31] For instance, Elmulong vs. Division
Superitendent of Schools of Cebu, 219 SCRA 256, March 1, 1993, reversed the
Court's 34-year-old doctrine laid down in Gerona vs. Secretary of
Education, 106 Phil 2, August 12, 1959, and upheld the right to Jehovah's
Witnesses "to refuse to salute the Philippine flag on account of their
religious beliefs." Similarly,
Olaguer vs. Military Commission, 150 SCRA 144, May 22, 1987,
abandoned the 12- year-old ruling in
Aquino Jr. vs. Military Commission, 63 SCRA 546, May 9, 1975, which
recognized the jurisdiction if military tribunals to try civilians for offenses allegedly committed during martial
law. The Court likewise reversed
itself in EPZA vs. Dulay, 149
SCRA 305, April 29, 1987, when it vacated its earlier ruling in National
Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the
validity of certain presidential decrees regarding the determination of just
compensation. In the much earlier case
of Philippine Trust Co. vs. Mitchell, 59 Phil. 30, December 8, 1933, the
Court revoked its holding in Involutionary Insolvency of Mariano Velasco &
Co., 55 Phil 353, November 29, 1930, regarding the relation of the insolvency
law with the then COde of Civil procedure and with the Civil Code. Just recently, the Court, in Kilosbayan vs.
morato, 246 SCRA 540, July 17, 1995, also abandoned the earlier grant of standing
to petitioner-organization in Kilosbayan vs. Guingona, 232 SCRA 110, May
5, 1994.
SEPARATE CONCURRING OPINION
PUNO, J.:
In G.R. No.
132231, petitioners assail the constitutionality of Sec. 11(b) of R.A. No. 6646
and Resolution No. 2974 of the COMELEC implementing said law. They contend:
“I
THE POLITICAL AD BAN IS MOVED BY AN INVALID LEGISLATIVE INTENT, ULTRA VIRES ON THE PART OF CONGRESS, AND VIOLATIVE OF THE VERY CONSTITUTIONAL PROVISION UPON WHICH IT IS SOUGHT TO BE GROUNDED.
II
CONTRARY OT THE HOLDING IN NATIONAL PRESS CLUB, THE POLITICAL AD BAN IS NOT LIMITED IN TIME AND SCOPE OF APPLICATION.
A. THE POLITICAL AD BAN IS NOT LIMITED IN
DURATION; IT IS ABSOLUTE, ALL-ENCOMPASSING, COMPREHENSIVE AND UNLIMITED.
B. THE POLITICAL AD BAN IS NOT LIMITED IN
SCOPE OF APPLICABILITY. INSOFAR AS THE
CANDIDATE’S FREEDOM TO EXPRESS THROUGH
THE MASS MEDIA, IT IS ABSOLUTE, ALL-ENCOMPASSING, COMPREHENSIVE AND UNLIMITED.
III
THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 CONSTITUTES PRIOR RESTRAINT, AND CARRIES A HEAVY PRESUMPTION AGAINST VALIDITY.
IV
THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY MEANS TO ACHIEVE THE DESIRED END.
A. INSTEAD OF ‘LEVELING THE PLAYING FIELD,’ INSOFAR AS THE USE OF MASS MEDIA FOR
POLITICAL PURPOSES IS CONCERNED, THE POLITICAL AD BAN HAS ABOLISHED THE PLAYING
FIELD.
B. THERE IS NO REASONABLE NECESSITY
FOR THE AD BAN, BECAUSE IT DOES NOT
PREVENT THE RICH CANDIDATE FROM USING HIS SUPERIOR RESOURCES TO THE UNDUE
DISADVANTAGE OF THE POOR CANDIDATE.
C. THERE IS NO REASONABLE NECESSITY FOR
THE POLITICAL AD BAN BECAUSE ADEQUATE SAFEGUARDS ARE LEGALLY IN PLACE IN ORDER
TO PREVENT THE RICH CANDIDATE FROM TAKING UNDUE ADVANTAGE OF HIS SUPERIOR
RESOURCES.
V
THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE PEOPLE TO BE INFORMED ON MATTERS OF PUBLIC CONCERN.
VI
THERE IS NO NEED FOR ‘EMPIRICAL DATA’ TO DETERMINE WHETHER THE POLITICAL AD BAN OFFENDS THE CONSTITUTION OR NOT.”
The Solicitor
General and the
petitioners-in-intervention likewise contend that section 11(b) of R.A. No.
6646 is unconstitutional principally because it impairs freedom of speech and
of the press.
A quick glance
at petitioners’ arguments against section 11 (b) of R.A. No. 6646 will show
that they are mere rehash of arguments in the NPC case. The lack of new arguments is a tribute to
the brilliant majority decision and equally enlightening dissenting opinions in
said case which petitioners now seek to reexamine. A repetition of the NPC rationale is thus unnecessary.
I wish, however,
to advert to the dissent of Madam Justice Romero which cites Buckley v.
Valeo,[1] a 1976 case where a divided US
Supreme Court ruled that limits on campaign expenditures violate the guarantee
of freedom of speech of some elements of society in order to enhance the
relative voice of others is wholly foreign to the First Amendment …”.[2]
A reading of
American legal literature, however, will reveal that Buckley has been widely
criticized by libertarians because its pro-business thrust has pernicious
effects on efforts to achieve much needed electoral reforms.[3] Typical of the criticisms is the
observation of Wright that the Buckley Court “… has given protection to the
polluting effect of money in election campaigns. As a result, our political system may not use some of its most
powerful defenses against electoral inequalities.”[4] The barrage of criticisms caused
the US Supreme Court to modify its absolute support for free speech in
Buckley. In the 1990 case of Austin v.
Michigan State Chamber of Commerce,[5] it upheld the constitutionality of
a Michigan law that prohibited corporations from using corporate treasury funds
to support or oppose any candidate for office. Retreating from Buckley, the Austin Count recognized the state’s compelling interest in regulating campaign
expenditure. Writing for the majority,
Mr. Justice Thurgood Marshall, an icon of libertarians declared: “Michigan identified as a serious danger the
significant possibility that corporate political expenditures will undermine
the integrity of the political process, and it has implemented a narrowly
tailored solution to that problem.” In
his concurring opinion, the last of the libertarians in the US High Court, Mr.
Justice Brennan, held: “In MCFL, we
held that a provision of the Federal Election Campaign Act of 1971 (FECA), x x
x similar to the Michigan law at issue here, could not be applied
constitutionally to a small, anti-abortion advocacy group. In evaluating the First Amendment challenge,
however, we acknowledge the legitimacy of Congress’ concern that organizations
that amass great wealth in the economic marketplace should not gain unfair
advantage in the political marketplace.”
There is less
reason to apply the discredited Buckley decision in our setting. Section 11 (b) of R.A. No. 6646 is based on
provisions of our Constitution which have no counterparts in the US Constitution. These provisions are:
“Art. II, section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
Art. XIII, section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
Art. IX (c) (4). The Commission may, may during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits from 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 forms among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.”
A member of the Constitutional Commission, now our distinguished
colleague, Mr. Justice Hilario Davide, Jr., well explained these new wrinkles
in our Constitution, viz.:
x x x
“Aware of the lamentable fact in the Philippines, no gap between these two unavoidable extremes of society is more pronounced than that in the field of politics, and ever mindful of the dire consequences thereof, the framers of the present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an exception. Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and competent, does not stand a fighting chance. Of course, there have been isolated instances – but yet so few and far between – when poor candidates made it.”[6]
He stressed that this thrust for political equality is an improvement of
our past Constitutions which merely sought to establish equality in the
economic and social fields.[7]
It is difficult
to think why such an egalitarian law like Section 11(b) of R. A. No. 6646
should be condemned when it equalizes the political opportunities of our
people. The gap between the perfumed few and the perspiring many in our country
is galloping at a frightening pace. As
the cost of election spirals at an immoral speed, the levers of political power
are wielded more and more by the wealthty alone. The subject law attempts to break this control by reducing the
purchasing power of the peso of the rich in the political freemarket.
Political
equality is a touchstone of democracy. The guaranty of freedom of speech should not be used to frustrate
legislative attempts to level the playing field in politics. R.A. No. 6646 does not curtail speech as it
no more than prevents the abusive use of wealth by the rich to frustrate the
poor candidate’s access to media. It
seems to me self-evident that if Congress can regulate the abuse of money in
the economic market so can it regulate its misuse in the political
freemarket. Money talks in politics but
it is not the specie of speech sanctified in our Consititution. If we allow money to monopolize the media,
the political freemarket will cease to be a market of ideas but a market for
influence by the rich. I do not read
freedom of speech as meaning more speech for the rich for freedom of speech is
not guaranteed only to those who can afford its exercise. There ought to be no quarrel with the
proposition that freedom of speech will be a chimera if Congress does not open
the opportunities for its exercise. When the opportunities for exercise. When the opportunities for its exercise are obstructed by the money of
the rich, it is the duty of Congress to regulate the misuse of money --- for in the political marketplace of
ideas, when money win, we lose.
Let us not also
close our eyes to the reality that in underdeveloped countries where sharp
disparities in wealth exist, the threat
to freedom of speech comes not only from the government but from vested
interests that own and control the media. Today, freedom of speech can be restrained not only by the exercise of
public power but also by private power. Thus, we should be equally vigilant in protecting freedom of speech from
public and private restraints. The
observation of a legal scholar is worth meditating, vis.: “With the development of private restraints
on free expression, the idea of a free marketplace where ideas can compete on
their merits has become just as unrealistic in the twentieth century as the
economic theory of perfect competition. The world in which an essentially rationalist philosophy of the first
amendment was born has vanished and what was rationalism is now romance.”[8]
I vote to
dismiss petition.
[1] 424 US 1
(1976); see also First National Bank of Boston v. Belloti, 435 US 765
(1978).
[2] Id. At pp. 48-49.
[3] Wright,
Money and the Pollution of Politics: Is
the First Amendment an Obstacle to Political Equality, 82 Col. L. Rev. No. 4
(May 1982); Abrogast, Political
Campaign Advertising and the First Amendment: A Structural-Functional Analysis of Proposed Reform, 23 Akron L. Rev.
2091 (1989); Blum, the Divisible First Amendment: A Critical Functionalist Approach to Freedom of Speech and
Electoral Campaign Spending, 58, N.Y.U.L. Rev. 1273 (1983).
[4] Wright, op
cit, p. 609.
[5] 494 US
652 (1990).
[6]
Concurring Opinion in NPC v. COMELEC, 207 SCRA 19 (1992).
[7] Id., at
p. 18.
[8] Barron, Access
to the Press-A New First Amendment Right, 80 Harv. L. Rev. 1641 (1967).
DISSENTING OPINION
ROMERO, J.:
“A foolish consistency is the hobgoblin of little minds….”[1]
Not wishing to
be held hostage by Emerson's “hobgoblin,” I dare to break away from a past
position and encapsulize my ruminations in a dissenting opinion.
When, If At All,
May The Court Reverse Itself?
The majority,
reiterating the 1992 decision NPC v. COMELEC, holds that Section 11(b)
of R.A.6646 is a reasonable restriction on the freedom of expression guaranteed
by the Constitution.[2] Our six-year experience with the
ban on political advertisements, however, constrains me to dissent. While it is desirable, even imperative, that
this Court, in accordance with the principle of stare decisis, afford
stability to the law by hewing to doctrines previously established, said
principle was never meant as an obstacle to the abandonment of established
rulings where abandonment is demanded by public interest and by circumstances.[3] Reverence for precedently simply as
precedent cannot prevail when constitutionalism and public interes demand
otherwise. Thus, a doctrine which
should be abandoned or modified should be abandoned or modified
accordingly. More pregnant than
anything else is that the court should be right.[4]
I submit that
our country’s past experience in the 1992 and 1995 elections, as well as
contemporary events, has established that Section 11(b) of R.A. 6646 falls short of rigorous and exacting standard
for permissible limitation on free speech and free press.
In 1992, this
Court, in NPC v. COMELEC, gave constitutional imprimatur to Section
11(b), pronouncing the same to be authorized by Article IX(C), Section 4 of the
Constitution which reads:
“Section 4 The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special priveleges, 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 object of holding fee, orderly, honest, peaceful and credible elections.”
Prefatorily, it
must be borne in mind that Article IX(C), Section 4 of the Constitution, is
essentially an express manifestation of the comprehensive police power of the
State.
Police power, it
has been declared often enough, rests upon public necessity and upon the right
of the state and the public to self-protection. For this reason, its scope expands and contracts with changing
needs.[5] In the words of Mr. Justice Isagani
A. Cruz:
“Police power is dynamic, not static, and must move with the moving soceity it is supposed to regulate. Conditions change, circumstances vary; and to every such alteration the police power must conform. What may be sustained as a valid exercise of the power now may become constitutional heresy in the future under a different factual setting. Old notions may become outmoded even as new ideas are born, expanding or constricting the limits of the police power. For example, police measures validly enacted fifty years ago against the wearing of less than sedate swimsuits in public beaches would be laughed out of court in thses days of permissiveness…(T)he police power continues to change even as constraints on liberty diminish and private property becomes more and more affected with public interest and therefore subject to regulation” (Italics ours).[6]
Thus, when the
temper and circumstances of the times necessitate a review, this Court should
not hesitate to reverse itself, even on constitutional issues; for the legal
problems with which society is beset continually cannot be merely considered in
the abstract, but must be viewed in light of the infinite motley facets of
human experience. As aptly stated by
Mr. Justice Holmes, “The life of the law has not been logic: it has been experience.”
By way of
illustration, we first held, in the celebrated Flag Salute Case,[7] that:
“the flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Under a system of complete separation of church and state in the government, the flag is utterly devoid of any religious significance. Saluting the flag does not involve any religious ceremony. The flag salute is no more a religious ceremony than the taking of an oath of office by a public official or by a public candidate for admission to the bar”
xxx xxx xxx
The children of Jehovah’s Witnesses cannot be exempted from participation in the flag ceremony. They have no valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and demoralize the rest of the school population which by far constitute the great majority.
The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority.”
The Court
further predicted that exempting
Jehovah’s Witnesses from participating in the flag ceremony would ultimately
lead to a situation wherein:
“[T]he flag ceremony will become a thing of the past or perhaps conducted with very few participants, and the time will come when we would have citizens untaught and uninculcated in and not imbued with reverence for the flag and love of country, admiration for national heroes, and patriotism-a pathetic, even tragic situation, and all because a small portion of the school population imposed its will, demanded and was granted an exemption.”
Thirty-two years
later, events caught up with the changing political climate, such that an
undivided Court pronounced, in Ebralinag v. The Division Superintendent of
School of Cebu[8] that:
“the idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one’s job or of being expelled from school, is alien to the conscience of the present generation of Filipino who their teeth on the Bill of Rights which guarantees their right to free speech and the free exercise of religious profession and worship
xxx xxx xxx
The sole justification for a prior restraint or immitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent Absent such a threat to public safety, the expulsion of petitioners from the schools is not justified.”
The Court held
that its earlier prediction of dire consequences had not come to pass. It concluded that exempting Jehovah’s
Witnesses from attending flag ceremonies would not produce a nation “untaught
and uninculcated in and not imbued with reverence for the flag and love of
country, admiration for national heroes and patriotism.”
In much the same
manner, in the early case of People v. Pomar,[9] the Court struck down as a
violative of the freedom of contract, a statute prescribing a thirty-day
vacation with pay both before and after confinement arising from
pregnancy. The Court said:
“The rule in this jurisdiction is, that the contracting parties may establish any agreements, terms, and conditions they may deem advisable, provided they are not contrary to law, morals or public policy.”
Citing American cases that espoused the prevailing laissez faire
doctrine, the Court ruled that the right to contract about one’s affairs is a
part of the liberty of the individual guaranteed by the due process
clause. The Court also cited the
“equality of right” principle, holding that “(I)n all such particulars the employer
and the employee have equality of right, and any legislation that disturbs that
equality is an arbitrary interference with the liberty of contract, which no
government can legally justify in a free land…Police power, the Court conceded,
is an expanding power; but it cannot grow faster than the fundamental law of
the state… If the people desire to have the police power extended and applied
to conditions and things prohibited by the organic law, they must first amend
that law.[10]
Sixteen years
later, the validity of the above pronouncement was rejected by the Court in Antamok Goldfields Mining
Co. v. CIR.[11] which rationalized its volte-face
stance, thus: (I)n the midst of changes
that have taken place, it may likewise be doubted if the pronouncement made by
this court in the case of People v. Pomar…still retains its virtuality
as a living principle. The policy of laissez
faire has to some extent given way to the assumption by the government of
the right of intervention even in contractual relations affected with public
interest.”
Similarly,
events subsequent to the Court’s ruling in Avelino v. Cuenco[12] impelled the Court to reverse its original
position. In this case, the Court
initially refused to take cognizance of the raging controversy to determine who
was the rightful president of the Philippine Senate, ruling that in view of the
separation of powers, the question was a political one not within its
jurisdiction. Despite such a ruling,
almost one-half of the members of the Senate refused to acknowledge Mariano
Cuenco as the acting President, as a result of which legislative work came to a
standstill. In other words of Justice
Perfecto, “the situation has created a veritable national crisis, and it is
apparent that solution cannot be expected from any quarter other than this
Supreme Court …. The judiciary ought to ripen into maturity if it has to be
true to its role as spokesman of the collective conscience, of the conscience
of humanity.” The Court, thus, assumed
jurisdiction over the case, rationalizing that supervising events justified its
intervention.
From the
foregoing, it can be seen that the inexorable march of events, and the
liberalizing winds of change may very well signal a needed shift in our
conception of the permissible limits of regulation in the name of police
power. Verily, while the validity of NPC
v. COMELEC may have been etched on granite at the time of its promulgation,
events subsequent thereto now call into question the very underpinnings of said
ponencia. To my mind, the hoary
maxim that “time upsets many fightings faiths” still holds true, and the Court
must be ever resilient and adaptable in order to meet the protean complexities
of the present and future generation.
In NPC v.
COMELEC, the court held that:
“(N)o 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 right of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-honored one – that a statute is presumed to be constitutional and that he party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion.”
This upends the
familiar holding that “any system of prior restraint of expression comes to
this Court bearing a heavy presumption against its constitutional validity,
with the Government carrying a heavy burden of showing justification for the
enforcement of such a restraint.”[13] This presumption was even
reiterated in the recent case of Iglesia ni Cristo v. CA,[14] wherein we ruled that “deeply
ensconced in our fundamental law is its hostility against all prior restraints
on speech…Hence, any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows. It is the burden of the respondent… to overthrow this
presumption. If it fails to discharge
this burden, its act of censorship will be struck down.” NPC v. COMELEC, insofar as it bestows
a presumption of validity upon a statute authorizing COMELEC to infringe upon
the right of free speech and free press, constitutes a departure from this
Court’s previous rulings as to mandate its re-examination.
In this
connection, it bears emphasis that NPC v. COMELEC was the product of a
divided court, marked as it was by the strong dissents of Mr. Justices Cruz,
Gutierrez, and Paras. This fact gains
significance when viewed in light of the changes in the composition of the
court. While a change in court
composition, per se, does not authorize abandonment of decisional
precedents, it is apropos to keep in mind the pronouncement by the Court in Philippine
Trust Co. and Smith, Bell and Co. v. Mitchell,[15] which reads as follows:
“Is the court with new membership compelled to follow blindly the doctrine of the Velasco case? The rule of stare decisis is entitled to respect. Stability in the law, particularly in the business field, is desirable. But idolatrous reverence for precedent, simply as precedent, no longer rules. More important than anything else is that the court should be right.” (Italics ours)
Are the Restrictions Imposed by Sec. 11(b) of R.A.
6646 on Freedom
of Expression Valid?
Preliminaries
having been disposed of, we proceed to the crux of the matter. Freedom of speech has been defined as the
liberty to know, to utter and to argue freely according to conscience, above
all liberties. It thus includes, not
only the right to express one’s views, but also other cognate rights relevant
to the free communication ideas, not excluding the right to be informed on
matters of public concern.
The Court, in NPC
v. COMELEC, found the restrictions imposed by Section 11(b) on the freedom
of expression, to be valid. First, the
prohibition is limited in the duration of its applicability and enforceability
to election periods. Precisely, this is
what makes the prohibition more odious. It is imposed during the campaign period when the electorate clamores
for more and accurate information as their basis for intelligent voting. To restrict the same only defeats the
purpose of holding electoral campaigns – to inform the qualified voter of the
qualifications of candidates for public office, as well as the ideology and
programs of government and public service they advocate, to the end that when
election time comes, the right of suffrage may be intelligent and knowingly, of
not always wisely, exercised. Opening
all avenues of information to the
estimated 36.4 million voters is crucial for the intelligent exercise of the
right of suffrage in the May 11 polls, considering that they will be voting for
an average of thirty elective position.[16]
Second the
prohibition is of limited application, as the same is applied only to the
purchase and sale of print space and air time for campaign or other political
purposes. “Section 11(b) does not
purport in any way to restrict the reporting by newspapers or radio or television stations of news or newsworthy
events relating to candidates, their qualifications, political parties and
programs of government.” It does not reach
commentaries and expressions of belief or opinion by reporters or broadcasters
or editors or commentators or columnists in respect of candidates, their
qualifications, and programs and so forth. To be sure, newspaper, radio and television stations may not be
restricted from reporting on candidates, their qualifications, and programs of
government, yet, admittedly, the freedom of expression of the candidates
themselves in the manner they choose to, is restricted. Candidates are thereby foreclosed from availing
of the facilities of mass media, except through the filtering prism of the
COMELEC.
Not to be
overlooked is the stark truth that the media itself is partisan. In a study[17] commissioned by the COMELEC itself
to determine whether certain newspaper adhered to the principles of fairness
and impartiality in their reportage of the presidential candidates in the 1992
elections, the results disclosed that newspapers showed biases for or against
certain candidates. Hence, the
contention that “Section11 (b) does not cut off the flow of media reporting,
opinion or commentary about candidates, their qualifications and platforms and
promises” simply is illusory. Editorial
policy will always ensure that favored ones will get minimal exposure, if at
all. This underscores the need to give
candidates the freedom to advertise, if only to counteract negative reporting
with paid advertisements, which they cannot have recourse to with the present
prohibition. Worse, the ban even
encourages corruption of the mass media by candidates who procure paid hacks,
masquerading as legitimate journalist, to sing them paeans to the high
heavens. Wittingly or unwittingly, the
mass media, to the detriment of poor candidates, occassionally lend themselves
to the manipulative devices of the rich and influential candidates.
Finally, it is
alleged that while Section 1(b)
prohibited the sale or donation by mass media of print space or air time for
campaign or other political purposes,
COMELEC, by way of exception, was mandated to purchase print space or air time,
which space and time it was required to allocate, equally and impartially,
among the candidates for public office. Hence, whatever limitation was imposed by Section 11 (b) upon the right
to free speech of the candidates was found not to be unduly repressive or
unreasonable inasmuch as they could still realize their objective as long as it
was coursed through COMELEC. COMELEC
it was that shall decide what, who, which media to employ and the time
allocation for the candidates who signify their desire to avail of the agency’s
airtime and print space. Why accord
to COMELEC such powers in the name of supervision and regulation at the expense
of the constitutionality hallowed freedom of expression?
Given the
conditions then prevailing, the Court’s ruling in NPC v. COMELEC may
have been valid and reasonable; yet today, with the benefit of hindsight, it is
clear that the prohibition has become a woeful hindrance to the exercise by the
candidates of their cherished right to free expression and concomitantly, a
violation of the people’s right to information on matters of public
concern. As applied, it has given an
undue advantage to well-known popular candidates for office.
In the hierarchy
of fundamental civil liberties, the right of free expression occupies a
preferred position,[18] the sovereign people recognizing
that it is indispensable in a free society such as ours. Verily, one of the touchstones of democracy
is the priciple that free political discussion is necessary if government
is to remain responsive to the will of the people. It is a guarantee that the people will be kept informed at all
times sufficiently to discharge the awesome responsibilities of sovereignty.
Yet, it is also
to be conceded that freedom of expression is not an absolute right. The right of privelege of free speech and
publication has its limitations, the right not being absolute at all times and
under all circumstances. For freedom of
speech does not comprehend the right to speak whenever, however, and wherever
one pleases, and the manner, and place, or time of public discussion can be
constitutionally controlled.[19]
Still, while
freedom of expression may not be immune from regulation, it does not follow
that all regulation is valid. Regulation must be reasonable as not to constitute a repression of the
freedom of expression. First, it must
be shown that the interest of the public generally, as distinguished from that
of a particular class requires such regulation. Second, it must appear that the means used are reasonably
necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals.
As to the first,
NPC v. COMELEC, this Court declared that the ban on political
advertising aims to assure equality of opportunity to proffer oneself for
public service by equalizing, as far as practicable, the situations of rich and
poor candidates by preventing the former from enjoying the undue advantage
offered by huge campaign “war chests.”
While there can
be no gainsaying the laudable intent behind such an objective, the State being
mandated to guarantee equal access to opportunities for public service, the
prohibition has had the opposite effect. Instead of “equalizing” the position of candidates who offer themselves
for public office, the prohibition actually gives an unfair advantage to those
who have wide media exposure prior to the campaign period. Instead of promoting the interest of the
public in general, the ban promotes the interest of a particular class of
candidates, the prominent and popular candidates for public office. What is in store for the relatively obscure
candidate who wants to pursue his candidacy? Eager to trumpet his credentials and program of government, he finds
himself barred from using the facilities of mass media on his own. While incumbent government officials, show
business personalities, athletes and prominent media men enjoy the advantage of
name recall due to past public exposure, the unknown political neophyte has to
content himself with other for a, which given the limited campaign period,
cannot reach the electorate as effectively as it would through the mass
media. To be sure, the candidate may
avail himself of “COMELEC Space” and “COMELEC Time,” but the sheer number of
candidates does not make the same an effective vehicle of communication. Not surprisingly, COMELEC Chairman Pardo,
at the Oral Argument held by the Court en banc, admitted that no
candidate has as yet applied for COMELEC air time and space.
More telling,
the celebrities are lavished with broader coverage from newspaper, radio and
television stations, as well as via the commentaries and expressions of belief
or opinion by reporters, broadcasters, editors, commentators or columnists, as
they are deemed more newsworthy by media, thus generating a self-perpetuating
cycle wherein political unknowns, who may be more deserving of public office,
campaign in relative obscurity compared to their more popular rivals. Instead of equalizing opportunities for
public service, the prohibitioin not only perpetuates political inequality, but
also invisiously discriminates against lesser-known candidates.
While Article
IX(C), Section 10 of the Constitution provides that “(b)ona fide candidates for
any public office shall be free from any form of harassment and discrimination,”
Article IX (C), Section 4 is nothing if antithetical to the former provision
as, in its application, it is productive of a situation wherein political
neophytes are blatantly discriminated against. Much as we recognize the basic canon in Constitutional construction that
the Constitution must be interpreted in such a way as to harmonize all its
provision if the Charter is to be construed as a single, comprehensive document
and not as a series of disjointed articles or provisions, the predictable
effect is for one provision to negate the other.
As to the second
requisite, experience shows that the ban on political advertisements has not
been reasonably necessary to accomplish its desired end. First, there are more than 70 provinces,
more than 60 cities and more than a thousand municipalities spread all over the
archipelago. Previous elections have
shown that the ban on political advertising forces a candidate to conduct a
nationwide whistle-stop campaign to attain maximum exposure of his credentials
and his program of government. Obviously, this necessitates tremendous resources for sundry expenses
indispensable for political campaigns, all within a limited period of 90 days. Given the enormous logistics needed for such
a massive effort, what are the chances for an impecunious candidate who
sincerely aspires for national office?
On the other
hand, radio and television reach out to a great majority of the populace more
than other instruments of information and dissemination, being the most pervasive,
effective and inexpensive. A 30-second
television advertisement, consting around P35,000.00 at present rates,
would, in an instant, reach millions of viwers around the country in the
comfort of their homes. Indeed, the use
of modern mass media gives the poor candidate the opportunity to make himself
known to the electorate at an affordable cost. Yet, these means of communication are denied such candidates due to the
imagined apprehension that more affluent candidates may monopolize the
airwaves. This fear, however, need not
materialize as the COMELEC is precisely empowered to regulate mass media to
prevent such a monopoly. Likewise, the
ceiling on election spending imposed by law upon all candidates, regardless,
will also serve as a deterrent.
Second, the
means employed is less than effective, for with or without the ban, moneyed
candidates, although similarly barred from buying mass media coverage, are in a
position to lavish their funds on the propaganda activities which their
lesser-endowed rivals can ill-afford. Furthermore, we take judicial notice of the inability of COMELEC to
enforce laws limiting political advertising to “common poster areas.” Many places in cities have been ungainly
plastered with campaign materials of the better off candidates. What use is there in banning political
advertisements to equalize the situation between rich and poor candidate, when
the COMELEC itself, by its failure to curb the political excesses of
candidates, effectively encourages the prevailing disparities? Why then single out political
advertising? What is the reasonable
necessity of doing so?
To be realistic,
judicial notice must be taken on the fact that COMELEC, in narrowing down its
list of “serious” candidates, considers in effect a candidate’s capability to
wage an effective nationwide campaign – which necessarily entails possession
and/or availability of substantial financial resources. Given this requirement, the objective of
equalizing rich and poor candidates may no longer find relevance, the candidtes
ultimately allowed to run being relatively equal, as far as resources are
concerned. Additionally, the
disqualification of nuisance candidates allegedly due to their inability to
launch serious campaigns, itself casts doubt on the validity of the prohibition
as a means to achieve the state policy of equalizing access to opportunities
for public service. If poor and unknown
candidates are declared unfit to run for office due to their lack of logistics,
the political ad ban fails to serve its purpose, as the persons for whom it has
been primarily imposed have been
shunted aside and thus, are unable to enjoy its benefits.
It must be kept
in mind that the holding of periodic elections constitute the very essence of a
republican form of government, these being the most direct act and
participation of a citizen in the conduct of government. In this process, political power is
entrusted by him, in concert with the entire body of the electorate, to the
leaders who are to govern the nation for a specified period. To make this exercise meaningful, it is the
duty of government to see to it that elections are free and honest and that the
voter is unhampered by overt and covert inroads of fraud, force and corruption
so that the choice of the people may be untrammelled and the ballot box an
accurate repository of public opinion. And since so many imponderables may affect the outcome of elections --
qualifications of voters and candidates, education, means of transportation,
health, public discussion, private animosities, the weather, the threshold of a
voter’s resistance to pressure – the utmost ventilation of opinion of men and
issues, through assembly, association and organizations, both by the candidate
and voter, becomes a sine qua non for elections to truly reflect the
will of the electorate.
With the
prohibition on political advertisements except through the Comelec space and
time, how can a full discussion of men, issues, ideologies and programs be
realized? Article III, Section 4 of the
Constitution provides that “(n)o law shall be passed abridging the freedom of
speech, of expression, of the press, or the right of the people peaceably to
assemble and petition the government of redress of grievaces.” Implicit in this guarantee is the right of
the people to speak and publish their views and opinions on political and other
issues, without prior restraint and/or fear of subsequent punishment. Yet Section 11(b), by authorizing
political advertisements only via the COMELEC effectively prevents the
candidates from freely using the facilities of print and electronic mass media
to reach the electorate. A more
blantant form of prior restraint on the free flow of information and ideas can
hardly be imagined. To be sure, it
does not constitute an absolute restriction, but it is restriction nonetheless,
as odious and insidious as any that may be conceived by minds canalized in
deepening grooves.
I hold that,
given our experience in the past two elections, political advertisements on
radio and television would not endanger any substantial public interest. Indeed, allowing advertisements would
actually promote public interest by furthering public awareness of election
issues. The objective, equalizing
opportunities for public service, while of some immediacy during election
times, does not justify curtailing the citizen’s right of free speech and
expression.
“Not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one’s mouth or a writing instrument to be stilled. For these reasons, any attempt to restrict these liberties must be justified by clear public interest, threatened not doubtfully or remotely but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These right rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation.”[20]
No such clear
and present danger exist here as to justify banning political advertisements
from radio and television stations.
Past experience
shows that the COMELEC has been hard put effectively informing the voting
populace of the credentials, accomplishments, and platforms of government of
the candidates. There are 17,396
national and local elective public positions[21] which will be constested by an
estimated 100,000 candidates[22] on May 11, 1998. For national positions, the list has been
trimmed down to 11 candidates for
president, 9 candidates for vice-president, and 40 candidates for senator. It is difficult to see how the number of
candidates can be adequately accomodated by “COMELEC Space” and “COMELEC time”
Resolution No. 2983 of the COMELEC, issued in compliance with Section 92 of
B.P. 881, mandates that at least thirty minutes of prime time be granted to the
Commission, free of charge, from February 10, 1998 until May 9, 1998.[23] Thirty minutes of prime-time for
eighty-nine days (89) is scarcely enough time to introduce candidates to the
voters, much less to properly inform the electorate of the credentials and
platforms of all candidates running for national office. Let us be reminded that those running for
local elective positions will also need to use the same space and time from
March 27 to May 9, 1998, and that the COMELEC itself is authorized to use the
space and time to disseminated vital election information.[24] Clearly “COMELEC Space” and
“COMELEC Time” sacrifices the right of the citizenry to be sufficiently
informed regarding the qualifications and programs of the candidates. The net effect of Section 11(b) is, thus, a
violation of the people’s right to be informed on matters of public concern and
makes it a palpably unreasonable restriction on the people’s right to freedom
of expression. Not only this, the
failure to “Comelec Space” and “Comelec Time” to adequately inform the
electorate, only highlights the unreasonableness of the means employed to
achieve the objective of equalizing opportunities for public service between
rich and poor candidates.
Again, NPC v.
COMELEC finds Section 11(b) valid, as paid political advertisement are
allowed in for a other than modern mass media, thus: “aside from Section 11(b)
of RA 6646 providing for ‘COMELEC Space’ and ‘COMELEC Time,’ Sections 9 and 10
of the same law afford a candidate several venues by which he can fully
exercise his freedom of expression, including freedom of assembly.” A concurring opinion points to the mandate
of COMELEC to encourage non-political, non-partisan private or civic
organization to initiate and hold in every city and municipality, public fora
at which all registered candidates for the same office may participate in, the
designation of common poster areas, the right to hold political caucuses,
conferences, meetings, rallies, parades, and other assemblies, as well as the
publication and distribution of campaign literature. All these devices conveniently gloss over the fact that for the
electorate, as shown in surveys by the Ateneo de Manila University’s Center for
Social Policy and Public Affairs, mass media remains to be the most important
and accessible source of information about candidates for public office.
It must be borne
in mind that the novel party-list system will be implemented in the impending
elections. The party-list system, an
innovation introduced by the 1987 Constitution in order to encourage the growth
of multi-party system is designed to give a chance to marginalized sectors of
society to elect their representative to the Congress. A scheme aimed at giving meaningful
representation to the interest of sectors which are not adequately attended to
in normal legislative deliberations, it is envisioned that system will encourage
interest in political affairs on the part of a large number of citizens who
feel that they are deprived of the opportunity to elect spokesmen of their own
choosing under the present system. It
is expected to forestall resort to extra-parliamentary means by minority groups
which would wish to express their interest and influence governmental policies,
since every citizen is given a substantial representation.[25]
Under R.A. 7941,
known as the Party-List System Act, the labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas worker and professional sectors[26] will have the opportunity to elect
representatives to Congress. With the
prohibition on political advertisements, however, those parties who wish to
have their candidates elected as sectoral representatives, are prevented from
directly disseminating their platforms of government through the mass
media. The ban on political
advertisements thus serves as a deterrent to the development of self-reliance,
self-development, logistical and organizational capability on the part of
sectoral parties/organizations, even as it inhibits them from reaching their
target audiences. What more effective
way of depriving them of the chance of consolidating a mass base sorely needed for a fair chance of success in
a highly competitive political exercise. Likewise, with the inability of the candidates to reach the sectors as
they seek to represent, the right of the people belonging to these sectors to
be informed on matters of concern to them is likewise violated.[27]
Finally, NPC
v. COMELEC invokes the specter of the “captive audience” to justify its
stand against political advertisements. Describing political advertisements as “appealing to the
non-intellective faculties of the captive and passive audience,” it says that
anyhow, the only limitation imposed by Section 11(b) upon the free speech of
candidates is on their right to bombard the helpless electorate with paid
advertisements commonly repeated in the mass media ad nauseam.
Suffice it to say
that, with the exception of obscenity, seditious speech, libel, and the like,
it is not for this Court to determine what the people may or may not watch or
read. Even “mind-numbing” political
advertisements are subject to the constitutional safeguard of due process.
Freedom of Speech Expression Remains A Fresh
And Vital Verity
The guarantee of
the freedom of speech which has been defined by Wendell Philips as “the
instrument and guarantee and the bright and consummate flower of all liberty,”
has always been granted a predominant status in the hierarchy of individual
rights.[28] It is founded on the belief that
the final end of the state was to make men free to develop their faculties and
that freedom to think as you will and to speak as you think are means indespensable
to the discovery and spread of political truth.[29] Its purpose is to preserve an
uninhibited marketplace of ideas where truth will ultimately prevail.[30] “An individual who seeks knowledge
and truth must hear all sides of the question, consider all alternatives, test
his judgement by exposing it to opposition and make full use of different
minds. Discussion must be kept open no
matter how certainly true an accepted opinion may be; many of the most widely
accepted opinions have turned out to be erroneous. Conversely, the same principles apply no matter how false or
pernicious the new opinion may be; for the unaccepted opinion may be true and
partially true; and even if false, its presentation and open discussion compel
a rethinking and retesting of the accepted opinion.[31] As applied to instant case, this
court cannot dictate what the citizens may watch on the ground that the same
appeals only to his non-intellective faculties or is mind-deadening and
repetitive. A veritable “Big Brother”
looking over the shoulder of the people declaring: “We know better what is good for you,” is passe’
As to the
puerile allegation that the same constitutes invasion of privacy, making the
Filipino audience a “captive audience,” the explosive growth of cable television
an AM/FM radio will belie this assertion. Today, the viewing population has access to 12 local TV channels,[32] as well as cable television
offering up to 50 additional channels. To maintain that political advertisements constitute invasion of privacy
overlooks the fact that viewers, with the surfeit of channels, can easily skip
to other TV channels during commercial breaks - a fact which, coupled with the
now ubiquitous remote control device, has become the bane of advertisers
everywhere.
The line between
gaining access to an audience and enforcing the audience to hear is sometimes
difficult to draw, leaving the courts with no clearcut doctrine on issues
arising from this kind of intrusion. This is specially true in cases involving broadcast and electronic
media. The US cases cited as
authorities on the captive audience phenomenon, which, incidentally, did not
involve the issue of election campaigns,[33] provide little guidance as to
whether freedom of speech may be infringed during the campaign period for national
elections on account of the individual’s right to privacy.[34] Prudence would dictate against an
infringement of the freedom of speech if we are to take into consideration that an election campaign
is as much a means of disseminating ideas as attaining political office[35] and freedom of speech has its
fullest and most urgent application to speech uttered during election
campaigns.[36] In Buckley v. Valeo, a case
involving the constitutionality of certain provisions of the Federal Election
Campaign Act, the United States Supreme Court per curiam held that:
“the concept that the government may restrict the speech of some elements in our society in order to enhance the relative voice of the others is wholly foreign to the First Amendment which was designed to “secure the widest possible dissemination of information from diverse and antagonistic sources” and “to assure unfettered interchange of ideas for the bringing about of political and social chages desired by the people.” (italics supplied)[37]
The fear that
the candidates will bombard the helpless electorate with paid advertisements,
while not entirely unfounded, is only to be expected considering the nature of
political campaigns. The supposition
however that “the political advertisements which will be “introjected into the
electronic media and repeated with mind deadening frequency” are commonly
crafted not so much to inform and educate as to condition and manipulate, not
so much to provoke rational and objective apparaisal of candidates’
qualifications or programs as to appeal to the intellective faculties of the
captive and passive audience” is not a valid justification for the infringement
of so paramount a right granted by the Constitution inasmuch as it is the
privilege of the electorate in a democratic society to make up their own minds
as to the merit of the advertisements presented. The government derives its power from the people as the sovereign
and it may not impose its standards of what is true and what is false, what is
informative and what is not for the individual who, as a “particle” of the
sovereignty is the only one entitled to exercise this privilege.
Government may
regulate constitutionality protected speech in order to promote a compelling
interest if it chooses the least restrictive means to further the said interest without unnecessarily
interfering with the guarantee of freedom of expression. Mere legislative preference for one rather
than another means for combating substantive evils may well be an inadequate
foundation on which to rest regulations
which are aimed at or in their operation diminish the effective exercise of
rights to necessary to maintenance of democratic institutions.[38]
It should be
noted that legislature has already seen fit to impose a ceiling on the
candidates’ total campaign expenditures[39] and has limited the political
campaign period to 90 days for candidates running for national office and 60
days for congressmen and other local officials. With these restrictions, it cannot be gainsaid that the
constitutional provision on social justice has been sufficiently complied
with. We see no reason why another
restriction, must be imposed which only burdens the candidates and voters
alike. To make matters worse, we are
not even certain as to the efficacy of the “adban” in curtailing the feared
consequences of the object of restriction. Of course, this is not to say that the law is being struck down as
unconstitutional mainly because it is efficacious or ineeficacious. If this is the only issue which confronts
us, there would have been no need to give due course to the petition inasmuch as we would be inquiring as to the
wisdom of the law and treading into an area which rightfully belongs to the
legislature. Verily, courts cannot run
a race of opinions upon points of right, reason and expediency with the
law-making power.[40]
Freedom of
Expression Incompatible With Social Justice?
The
Costitutional question at hand is not just a simple matter of deciding whether
the “adban” is effective or ineffective in abridging the financial disparity
betweem the rich and poor candidates. Sec. 11(b) of RA No. 6646 strikes at the very core of freedom of
expression. It is unconstitutional not
because we are uncertain as to whether it actually levels the playing field for
the candidates but because the means used to regulate freedom of expression is
on all points constitutionally impermissible. It tells the candidates when, where and how to disseminate their ideas
under pain of punishment should they refuse to comply. The implications of the ban are indeed more
complex and far reaching than approximating equality among the rich and the
poor candidates.
The primacy
accorded the freedom of expression is a fundamental postulate of our
constitutional system. The trend as
reflected in Philippine and American decisions is to recognize the broadset
scope and assure the widest latitude to this guaranty. It represents a profound commitment to the
principle that debate of public issue should be uninhibited, robust and wide
open and may best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are or even stirs people to
anger.[41]
The repression
of expression in an attempt to level the playing field between the rich and the
poor candidates is not only unrealistic but goes beyond the permissible limits
of freedom of expression as enshrined in the constitution. Social justice is a laudable objective but
it should not be used as a means to justify infringement of the freedom of
expression if it can be achieved by means that do not necessarily trench on the
individual’s fundamental right. The
case of Guido v. Rural Progress Administration,[42] is particularly enlightening. In said case, we had occassion to state
that:
“Hand in hand with the announced principle, herein invoked, that “the promotion of social justice to insure the well being and economic security of all people should be the concern of the state’, is a declaration with which the former should be reconciled, that 'the Philippines is a Republican state' created to secure to the Filipino people 'the blessings in independence under a regime of justice, liberty and democracy.' Democracy as a way of life enshrined in the Constitution, embraces as its necessary components freedom of conscience, freedom of expression, and freedom in pursuit of happiness. x x x Social justice does not champion division of property or equality of economic status; what it and the Constitution do guarantee are equality of economic opportunity, equality of political rights, equality before the law, equality between values given and received x x x."
While we concede
the possibility that the rich candidates may dominate the airwaves to the
detriment of the poor candidates, the latter should not be prevented from
replying. While they may be restricted on account of their financial resources,
they are not denied access to the media altogether. This is what is meant by
the phrase "equal time, space, equal opportunity and the right of reply"
under Article IX (C)(4) of the 1987 Constitution which was inserted by the
framers of the Constitution as a reaction to a 1981 ruling of the Supreme Court
that when the president speaks over radio or television, he speaks not as a
representative of his party but of the people and therefore opposition parties
have no right to demand equal time[43]
It is ironic
that the guarantee of freedom of expression should be pitted against the
consitutional provision on social justice because the freedom of speech is the
most potent instrument of public opinion, not to speak of its being the most
effective weapon for effecting political and social reforms. Certainly, an
infringement of the freedom of speech in a less than heroic attempt at
attaining social justice cannot be countenanced, for in the ultimate analysis
social justice cannot flourish if the people's right to speak, to hear, to know
and ask for redress of grievances is watered down.
A word in the
intervenors' argument that Resolution No. 2983, Section 2, insofar as it
directs every radio broadcasting and television to provide COMELEC with airtime
free of charge constitutes taking of private property for public use without
just compensation. The COMELEC, anticipating its vulnerability to said
challenge passed Resolution 2983-A on MArch 3, 1998 requiring that it pay just
compensation for its COMELEC time.
Buckley vs. Valeo
and Existing US Jurisprudence
The novelist
George Orwell once said, "In a society in which there is no law, and in
theory no compulsion, the only arbiter of behavior is public opinion. But
public opinion, because of the tremendous urge to conformity in gregarious
animals, is less tolerant than any other system of law." For want of
legislature to equalize the playing field between the rich and the poor candidates,
it has by imposing a complete prohibition on paid political advertisements,
burned down a house to roast a pig. For fear of accusations that it might be
treading into an area which rightfully belongs to the legislature, the Court
today, by sanctioning an unnecessary infringement on the freedom of speech, has
unwittingly allowed the camel's nose into the tent.
My colleague,
Justice Reynato Puno, in his separate opinion, apparently overlooked the thrust
of our dissenting opinion when we qouted the case Buckley v. Valeo.[44] Lest we be misunderstood, we have
in no way relied on the Buckley v. Valeo case for the grant of
instant petition inasmuch as it has never escaped our notice that legislature
has already seen fit to impose a ceiling on the candidates' total campaign
expenditures[45] Precisely, we have repeatedly
emphasized in the dissenting opinion that we see no reason why another
restriction must be imposed on the constitutional guarantee of freedom of
speech which only burdens the candidates and electorates alike when legislature
has already taken steps to comply with the constitutional provision on social
justice by imposing a ceiling on the candidates' total campaign expenditures
and limiting the campaign period to 90 days for candidates running for national
office and 60 days for congressmen and other local officials. We have mentioned Buckley if only to
underscore the fact the due to the primacy accorded to freedom of speech,
court, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content. To preserve the sanctity of the status accorded to the said freedom, the
US Supreme Court has, in fact, gone as far as invalidating a federal law
limiting individual expenditures of candidates running for political office.
In any case, to address some misconceptions about existing jurisprudence
on the matter, we now present a brief discussion on Buckley and the preceding
US cases. In the case of Buckley v. Valeo, a divided US Supreme
Court, per curiam held that a federal law limiting individual contributions
to candidates for office served the state's compelling interest in limiting the
actuality and appearance of corruption. However a law limiting expenditures
by candidates, individuals and groups was held unconstitutional. The rationale
for the dichotomy between campaign expenditures and contributions has been
explained in this wise - campaign contributions are marginal because they
convey only an undifferentiated expression of support rather than the specific
values which motivate the support. Expenditures, on the other hand, as directly related to the expression
of political views, are on a higher plane of constitutional values. The Court,
in noting that a more stringent justification is necessary for legislative
intrusion into protected speech said, "A restriction on the amount of
money a person or a group can spend on political communication 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 in today's mass
requires the expenditure of money."[46]
A more
discerning scrutiny of the US cases following Buckley, would show that
while Buckley has been widely criticized, it has, to date, never been
modified, much less discredited. In California
Medical Association vs. FEC,[47] a law limiting the amount an
incorporated association can contribute to a multi-candidate political
committee was upheld. The spending was
viewed not as independent political speech but rather as "speech by
proxy," hence, the spending was deemed analogous to group contributions
which can be regulated.
In FEC vs.
National Conservative Political Action Comm,[48] the US Supreme Court invalidated a
section of the Presidential Election Campaign Fund Act which makes it a
criminal offense for an independent political committee to spend more
than $1,000 to further the election of a presidential candidate who elects
public funding. National
Conservative Political Action Committee (NCPAC) and the Fund for a Conservative
Majority (FCM), two political action committees or PAC's, solicited funds in
support of President Reagan's 1980 presidential campaign. The PAC's spent these funds on radio and
television advertising in support of Reagan. The Court, relying on Buckley v. Valeo and and the
distinction it drew between expenditures and contributions, held that the independent
expenditures of the political committees were constitutionally protected
for they "produce speech at the core of the First Amendment"
necessitating a "rigorous standard of review." Justice Rehnquist, for the court, likened
the restriction to allowing a speaker in a public hall to express his views
while denying him use of the amplifier. As in Buckley, independent
expenditures, not coordinated with candidates' political campaign, were
seen as presenting a lesser danger of political quid pro quos. The Court
then proceeded to reject efforts to support the statutory limitation on
expenditures on the basis of special treatment historically accorded to
corporations inasmuch as the terms of the Campaign Fund Act "apply equally
to an informal neighborhood group that solicits contributions and spends money
on a presidential election campaign as to the wealthy and professionally
managed PAC's."
In the case of FEC
v. Massachussets Citizens for life (MCFL),[49] a provision of the Federal Election
Campaign Act prohibiting direct expenditure of corporate funds to a non-profit, voluntary political
association concerned with elections to public office was struck down as
unconstitutional. No compelling
government interest was found to justify infringement of protected political
speech in this case where a small voluntary political association, which had no
shareholders and was not engaged in business, refused to accept contributions
from either business corporations or labor unions.
In Austin v.
Michigan Chamber of Commerce,[50] the case cited by Justice Puno, a
Michigan statute prohibiting corporations from making campaign contributions
from their general treasury funds to political candidates was held not to
violate the first amendment even though the statute burdened expressive
activity mainly because the statute was sufficiently narrowed to support its
goal in preventing political corruption or the appearance of undue influence
- it did not prohibit all corporate
spending and corporations were permitted to make independent expenditures of
political purposes from segregated funds but not from their treasuries. Notably, the non profit corporation
involved in this case, the Michigan Chamber of Commerce (hereinafter referred
to as the Chamber of Commerce), lacked three of the distinctive features of
MCFL, the organization involved in the FEC vs. National Conservative
Political Action Comm[51] case, namely: (1) The Chamber of
Commerce, unlike MCFL, was not formed just for the purpose of political
expression (2) The members of the Chamber of commerce had an economic reason
for remaining with it even though they might disagree with its politics and (3)
The Chamber of Commerce, unlike MCFL, was subject to influence from business
corporations which might use it as a conduit for direct spending which would
pose a threat to the political marketplace.
From the
foregoing, it should be obvious that Austin in fact supports the holding in Buckley
v. Valeo and "refines" it insofar as as it allows the
regulation of corporate spending in the political process if the regulation is
drawn with sufficient specificity to serve the compelling state interest
in reducing the threat that "huge corporate treasuries" will distort the political process and
influence unfairly the outcome of elections.
The adban,
undoubtedly, could hardly be considered as a regulation drawn with sufficient
specificity to serve compelling government interest inasmuch as it imposes
a complete prohibition on the use of paid political advertisements except
through Comelec time and space despite the fact that Congress has already seen
fit to impose a ceiling on the candidates' total campaign expenditures. While it seems a rather fair proprosition
that Congress may regulate the misuse of money by limiting the candidates how,
when, and where to use their financial resources of political campaigns. Obviously, it is one thing to limit the
total campaign expenditures of the candidates and another to dictate to them as
to how they should spend it.
Freedom of
expression occupies a preferred position in the hierarchy of human values. The priority gives the liberty a sancity and
a sanction not permitting dubious intrusions and it is the character of the
right, not the limitation which determines what standard governs the choice.[52] Consequently, when the government
defends a regulation on speech as a means to redress past harm or prevent
anticipated harm, it must do more than simply "posit the existence of the
disease sought to be cured.[53] It must demonstrate that the
recited harms are real, not merely conjectural and that the regulation will
alleviate these harms in a material way.[54]
As earlier
pointed out, legislature has already seen fit to impose a ceiling on the total
campaign expenditures of the candidates and has limited the campaign period for
90/60 days. We see no reason why
another restriction must be imposed which only burdens the candidates and the
voters alike. The fact alone that so
much time has been devoted to the discussion as to whether the adban does in
fact level the playing field among the rich and poor candidates should be a
strong indication in itself that it is a dubious intrusion on the freedom of
expression which should not be countenanced.
Illegitimate and
unconstitutional practices make their initial foothold by furtive approaches
and minimal deviations from legal modes of procedure. Hence, courts must be extremely vigilant in safeguarding the
fundamental rights granted by the Constitution to the individual. Since freedom of expression occupies a
dominant position in the hierarchy of rights under the Constitution to the
individual. Since freedom of expression
occupies a dominant position in the hierarchy of rights under the Constitution,
it deserves no less than an exacting standard of limitation. Limitations on the guarantee must be
clearcut, precise and, if needed readily controllable, otherwise the forces
that press towards curtailment will eventually break through the crevices and
freedom of expression will become the exception and suppression the rule.[55] Sadly, the much vaunted adban
failed to live up to such standard and roseate expectations.
Freedom of
Expression in Historical Context
At this
juncture, as we celebrate the Centennial of our Philippine Independence, it is
timely to call to mind that wars and revolutions have been fought, not only in our
shores and in our time, but in centuries past, halfway around the globe to keep
these subject rights inviolate. To
stretch our memories, Spain's adamant denial of basic freedoms to our hapless
forefathers, among others, sparked the Philippine revolution. Jose Rizal, in "Filipinas Despues de
Cien Años"[56] described the reform a sine quibus non,
saying, in "The minister,... who wants his reforms to be reforms, must
begin by declaring the press in the Philippines free." The Filipino propagandist who sought refuge
in the freer intellectual climate of Spain invariably demanded "liberty of
the press, of cults, and of associations[57] through the columns of "La
Solidaridad."
One of the more
lofty minds unleashed his fierce nationalistic aspirations though the novels
Noli Me Tangere and El Filibusterismo, necessarily banned from the author's
native land. Eventually, the seeds of
these monumental works ignited the flame of revolution, devouring in the
process its foremost exponent, albeit producing a national hero, Jose
Rizal. The mighty pen emerged
victorious over the colonizers' sword.
The Malolos
Constitution, approved before the turn of century on January 20, 1899,
enshrined freedom of expression in Article 20 of its Bill of Rights, thus:
"Article 20 Neither shall any Filipino be deprived:
1. Of the right to freely express his ideas or
opinions, orally or in writing, through the use of the press or other similar
means."[58]
This right, held sacrosanct by the Filipino people and won at the cost
of their lives found its way ultimately in the Constitutions of a later day,
reenforced as they were, by the profound thoughts transplanted on fertile soil
by libertarian ideologies. Why
emasculate the freedom of expression now to accord a governmental agency a
power exercisable for a limited period of time for the dubious purpose of
"equalizing" the chances of wealthy and less affluent candidates?
In summary, I
hold that Section 11(b) of RA 6646, in the six years that have elapsed since it
was upheld as being in consonance with the fundamental law, has now become out
of sync with the times and, therefore, unreasonable and arbitrary, as it not
unduly restrains the freedom of expression of candidates but corollarily denies
the electorate its fullest right to freedom of information at a time when it
should flourish most.
For the reasons
stated above, I VOTE to declare Section 11(b) of RA 6646 UNCONSTITUTIONAL.
[1]
“Self-Reliance.” Emerson’s Essays, Emerson, Ralph Waldo, Books, Inc., N.Y.
[2] Article III, Sec. 4.
"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."
[3] Olaguer
v. Military Commission No. 34, 150 SCRA 144 (1987).
[4] Olaguer v. Milirary Commission No.
34, 150 SCRA 145 citing Phil. Trust Co. and Smith Bell and Co. v.
Mitchell, 50 Phil. 30 (19330 cited with approval in Koppel (Phils.), Inc. v.
Yatco, 77 Phil. 496 (1946). See
also Tan Chong v. Secretary of Labor, 79 Phil. 249 (1947).
[5] BERNAS,
THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, Vol. I, 1987
ed., p. 34.
[6] CRUZ,
CONSTITUTIONAL LAW, 1993 ed., p. 43.
[7] Gerona v.
Secretary of Education, 106 Phil. 2 (1959).
[8] 219 SCRA
256 (1993).
[9] 46 Phil.
440 (1924).
[10] BERNAS,
THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, Vol. II ed.,
p.40.
[11] 70 Phil.
340 (1940).
[12] 83 Phil.
17 (1949).
[13] Bernas,
The Constitution of the Republic of the Philippines: A Commentary Vol. I, p.
142, citing New York Times vs. United States (403 U.S. 713).
[14] 259 SCRA 529 (1996).
[15] 59 Phil. 30 (1933).
[16] One
president, one vice-president, twelve senators, one congressman, one party-list
representative, one governor, one vice-governor, an estimated five Sangguniang
panlalawigan members, one mayor, one vice-mayor, and an estimated five
Sangguniang Bayan/Panglungsod members.
[17] The study was conducted by six senior
students of th UP College of Mass Communications, covering Manila Bulletin,
Philippine Daily Inquirer, Philippine Times Journal, People’s Journal and Tempo
– Report of the COMELEC to the President and Congress of the Republic of the
Philippines on the Conduct of the Synchronized National and Local Elections of
May 11, 1992, Vol. I, p. 56.
[18]
Philippine Blooming Mills Employees Organization vs. Philippine Blooming
Mills, Inc., 50 SCRA 189 (1973).
[19] 16A Am
Jur 2d, p. 341.
[20] Blo Umpar
Adiong vs. Comelec, 207 SCRA 712 (1992).
[21] Education
and Information Department, COMELEC.
[22] In 1992,
there were 17,282 contested positions, while the total number of candidates
reached 87,770 – Report of the COMELEC to the President and Congress of the
Republic of the Philippines on the Conduct of the Synchronized National and
Local Elections of May 11, 1992, Vol. I, p. 2.
[23] Sec. 2
Every radio broadcasting and television station operating under franchise shall
grant the Commission, free of charge, at least thirty (30) minutes of prime
time daily, to be known as “COMELEC Time,” effective February 10, 1998 for
candidates for President, Vice-President and Senators, and March 27 for
candidates for local elective offices, until May 9, 1998.
[24] Sec. 3.
Uses of “COMELEC Time” – x x x “COMELEC Time” shall also be used by the
Commission in disseminating vital election information.
[25] BERNAS,
THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 ed., p. 344.
[26] Section 3, R.A. 7941.
[27] As of February 9, 1998, 93
parties/organizations have filed certificates of candidacy under the party-list
system – Law Division, COMELEC.
[28] Mutuc v.
Comelec, 36 SCRA 228 (1970); Victoriano v. Elizalde Rope Workers Union,
59 SCRA 54 (1974); Gonzales v. Comelec, 27 SCRA 835 (1969).
[29] See
concurring opinion of Mr. Justice Brandeis in Whitney v. California, 274
US 357 (1926).
[30] Red Lion
Broadcasting Co. v. FCC, 395 US 367 (1969).
[31] Emerson,
Thomas. The System of Freedom of
Expression, p. 7 (1969).
[32] Channels
2, 4, 5, 7, 11, 13, 23, 27, 29, 31, 39.
[33] In Columbia Broadcasting v. Democratic
National Committee (412 US 94) the court held that broadcasters may validly
refuse to accept paid editorial advertisements from “responsible entities”
wishing to present their views on public issues like, in this instance, the
Business Executives’ Move for Vietnam Peace, expressing their views on
theVietnam conflict. See however CBS v.
Fox (453 US 367 [1981]) where the US Supreme Court held that the Communications
Act of 1934 grants an affirmative, enforceable and limited right of reasonable
access to broadcasting media for legally qualified individual candidates
seeking federal elective office. The
Court quoted the observation of the Federal Communications Commission that “An
arbitrary blanket ban on the use of the candidate of a particular class or
length of time in a particular period cannot be considered reasonable. A Federal candidate’s decision as to the
best method of pursuing his or her media campaign should be honored as much as
possible under the “reasonable limits” imposed by the licensee.”
In Public Utilities v. Pollak (343 US 451 [1952])
which was cited in Columbia, the US Supreme Court rejected the claim that the
broadcasting of special programs – in
this case 90% music, 5% news and 5% commercial advertising – in public transit
cars violated the right of the passengers who did not wish to listen to the
programs.
In Kovacs v. Cooper (336 US 77 [1949]) the Court
upheld an ordinance forbidding the use on public streets of sound trucks which
emit “loud and raucous” noises. Justice
Black in his dissent however cited the case of Saia v. New York (334 US
558 [1948]) where an ordinance banning the use of sound amplification devices
except for dissemination of news items and matters of public concern – provided
the police chief’s permission was obtained, was struck down as
unconstitutional. The court in the Saia
case held that, “Loudspeakers are today indespensable instruments of effective
public speech. The sound truck has
become an accepted method of campaign.” Adhering to his dissent in Saia, Justice Frankfurter concurred in Kovacs
saying, “So long as the legislature does not prescribe what may be noisily
expressed and what may not be, it is not for us to supervise the limits the
legislature may impose in safeguarding the steadily narrowing opportunities for
serenity and reflection.”
[34] The case
of Lehman v. Shaker Height (418 US [1974]) is not particularly in point
in the case at bar where a complete prohibition is imposed on the use of
newspapers, radio or television, 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 and political purposes except to the Commission. In the case at Lehman, a city operating a
public transit system sold commercial and public service advertising space for
cards on its vehicles, but permitted no “political” or “public issue”
advertising. When petitioner, a
candidate for the Office of State Representative to the Ohio General Assembly
failed in his effort to have advertising promote his candidacy accepted, he sought
declaratory relief in the State courts. The US Supreme Court held that the city consciously has limited access
to its transit system to minimize the chances of abuse, the appearance of
favoritism and the risk of imposing upon a captive audience.
[35] Illinois
Board of Directors v. Socialist Workers, 440 US 173 (1979).
[36] Eu v.
San Francisco Democratic Comm., 489 US 214 (1989).
[37] Buckley v.
Valeo, 424 US 1 (1976) citing New York Times v. Sullivan, 84 S Ct. 710, quoting Associated Press v. United States, 326 US 1
(1945) and Roth vs. United States at 484.
[38] Thorhill v.
State of Alabama, 310 US 88 (1940).
[39] Section 100 of BP 881, otherwise known as the
Omnibus Election Code, states: “No
candidate shall spend for his election campaign an aggregate amount exceeding
one peso and fifty centavos for every voter currently registered in the
constituency where he filed his candidacy. Provided that the expenses herein referred to shall include those
incurred or caused to be incurred by
the candidate, whether in cash or in kind, including the use, rental or hire of
land, water or aircraft, equipment facilities, apparatus and paraphernalia used
in the campaign; Provided, further that where the land, water or
aircraft, equipment, facilities, apparatus and paraphernalia is owned by the
candidate, his contributor or his
supporter, the Commission is hereby empowered to assess the amount commensurate
with the expenses for the use thereof based on the prevailing rates in the
locality and shall be included in the total expense incurred by the candidate.”
See also related Sections 94-112.
[40] Cooley,
Thomas, I Constitutional Limitations. 8th Ed. (1927, p. 346.
[41] Gonzales v.
Comelec, supra.
[42] 84 Phil.
847 (1949).
[43] 1 Record
632, 662-66.
[44] 424 US 1
[1976].
[45] See
footnote 39.
[46] Supra
at 19.
[47] 453 US
182 [1981].
[48] 470 US
480 [1985].
[49] 475 US
1063 [1986].
[50] 494 US
652 [1990].
[51] Supra.
[52] Thomas v.
Collins, 323 U.S. 516 (1945), as cited in the dissenting opinion of Justice
Fernando in Gonzales v. Comelec at p. 885 and in the case of Blo Umpar
Adiong v. Comelec, 207 SCRA 712 [1992].
[53] Quincy
Cable TV Inc. v. FCC, 786 F2d 1434 [1985].
[54] Edenfield
v. Fane, 507 US [1993].
[55] Emerson,
Thomas. The System of Freedom of
Expression, [1967] pp. 10-11.
[56] The
Philippines a Century Hence, p. 62 et seq.
[57] United
States vs. Bustos, 37 Phil. 731 (1918). See Mabini, La Revolucion Filipina
[58] GUEVARA,
THE LAWS OF THE FIRST PHILIPPINE REPUBLIC (THE LAWS OF MALOLOS) 1898-1899,
1972, p. 107.
SEPARATE OPINION
VITUG, J.:
I share the
opinion of those who continue to uphold the decision in the National Press
Club vs. Commission on Elections case that has sustained the validity of
Section 11(b) of Republic Act (“R.A.”) No. 6646, otherwise also known as the
Electoral Reforms Law of 1987.
Petitioners, in
seeking a re-examination of the decision of this Court in the National Press
Club case, no more than invoke anew Section 4, Article III, of the Constitution
to the effect that –
“No law shall be passed abridging the freedom of speech, of expression, or of press, on the right of the people peaceably to assemble and petition the government for redress of grievances.”
It is their submission that Section 11(b) of R.A. No. 6646 and Section
18(e) of Comelec Resolution No. 2974 should be declared unconstitutional. These contested provisions state:
“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;
“xxx xxx xxx
“b) for any newspaper, radio broadcasting or television station, 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 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.”
Sec. 18. Prohibited forms of election propaganda. – it is unlawful
“xxx xxx xxx
“e. For any radio broadcasting or television or any person making use of broadcast media to sell or give free of charge, any air time for campaign and other political purposes, except thru ‘COMELEC time,’ allotted to the Commission pursuant to Section 92 of the Omnibus Election Code.”
I see however,
in the above provision a faithful compliance and due observance of the
language, intent and spirit of the Constitution itself, Article IX(C)(4) of
which reads:
“Sec. 4. The Commission [on Elections] may, during the election period, supervise or regulate the enjoyment or utilization of all franchise 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.” (Italics supplied)
It might be worth mentioning that Section 26, Article II, of the
Constitution also states that the “State shall guarantee equal access to
opportunities for public service, and prohibit political dynasties as may be
defined by law.” I see neither Article
IX (C)(4) nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free
expression. In any event, the latter,
being one of general application, must yield to the specific demands of the
Constitution. The freedom of expression
concededly holds, it is true, a vantage point in hierarchy of
constitutionally-enshrined rights but, like fundamental rights, it is not
without limitations.
The case is not
about a fight between the “rich” and the “poor” or between the “powerful” and
the “weak” in our society but it is to me a genuine attempt on the part of
Congress and the Commission on Elections to ensure that all candidates are
given an equal chance to media coverage and thereby be equally perceived as
giving real life to the candidates’ right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that which the
legislature deems to be best in giving life to the Constitutional mandate, is
not for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.
I vote to
dismiss the petition.