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G.R. No. 102653. March 5, 1992.*
NATIONAL PRESS CLUB, petitioner, vs. COMMISSIONON ELECTIONS,
respondent.
G.R. No. 102925. March 5, 1992.*
PHILIPPINE PRESS INSTITUTE represented by ZOILODEJARESCO, JR.,
as its Past Chairman and President,and FRAULIN A. PEASALES as its
Corporate Secretary,petitioners, vs. COMMISSION ON
ELECTIONS,represented by HON. CHRISTIAN MONSOD, itsChairman; HON.
GUILLERMO CARAGUE and HON.ROSALINA S. CAJUCOM, respondents.
G.R. No. 102983. March 5, 1992.*
KAPISANAN NG MGA BRODKASTERS SA PILIPINAS;MAKATI BROADCASTING
NETWORK; MOLAVEBROADCASTING NETWORK; MASBATE COMMUNITYBROADCASTING
CO., INC., RADIO MINDANAONETWORK, INC.; ABS-CBN BROADCASTING
CORP.;FILIPINAS BROAD
_______________
* EN BANC.
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NETWORK, INC.; EAGLE BROADCASTING CORP.;MAGILIW COMMUNITY
BROADCASTING CO., INC.; forthemselves and in behalf of the mass
media owners as aclass; ANDRE S. KHAN; ARCADIO M. CARANDANG,
JR.;MALOU ESPINOSA MANALASTAS; MIGUEL C.ENRIQUEZ; JOSE ANTONIO K.
VELOSO; DIANA G. DEGUZMAN; JOSE E. ESCANER, JR.; RAY G.
PEDROCHE;PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDORAMIREZ; for
themselves as voters and in behalf of thePhilippine electorate as a
class; ORLANDO S. MERCADOand ALEJANDRO de G. RODRIGUEZ; for
themselves asprospective candidates and in behalf of all candidates
inthe May 1992 election as a class, petitioners, vs.COMMISSION ON
ELECTIONS, respondent.
Constitutional Law; Election Law; Freedom of Speech;
TheConstitution has expressly authorized the Comelec to supervise
orregulate the enjoyment or utilization of the franchises or
permits forthe operation of media of communication and
information.TheComelec has thus been expressly authorized by the
Constitution tosupervise or regulate the enjoyment or utilization
of the franchisesor permits for the operation of media of
communication andinformation. The fundamental purpose of such
supervision orregulation has been spelled out in the Constitution
as the ensuringof equal opportunity, time, and space, and the right
to reply, aswell as uniform and reasonable rates of charges for the
use of suchmedia facilities, in connection with public information
campaignsand forums among candidates.
Same; Same; Same; Rule applicable is that a statute ispresumed
to be constitutional and that a party asserting
itsunconstitutionality must discharge the burden of clearly
andconvincingly proving that assertion.The technical effect of
ArticleIX (C) (4) of the Constitution may be seen to be that no
presumptionof invalidity arises in respect of exercises of
supervisory orregulatory authority on the part of the Comelec for
the purpose ofsecuring equal opportunity among candidates for
political office,although such supervision or regulation may result
in somelimitation of the rights of free speech and free press.
Forsupervision or regulation of the operations of media enterprises
isscarcely conceivable without such accompanying limitation.
Thus,the applicable rule is the general, time-honored onethat a
statute
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is presumed to be constitutional and that the party asserting
itsunconstitutionality must discharge the burden of clearly
andconvincingly proving that assertion.
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VOL. 207, MARCH 5, 1992 3
National Press Club vs. Commission on Elections
Same; Same; Same; Section 11 (b) is limited in the duration
ofits applicability and enforceability.Firstly, Section 11 (b) is
limitedin the duration of its applicability and enforceability. By
virtue ofthe operation of Article IX (C) (4) of the Constitution,
Section 11 (b)is limited in its applicability in time to election
periods. By itsResolution No. 2328 dated 2 January 1992, the
Comelec, actingunder another specific grant of authority by the
Constitution(Article IX [C] [9]), has defined the period from 12
January 1992until 10 June 1992 as the relevant election period.
Same; Same; Same; Section 11 (b) does limit the right of
freespeech and of access to mass media of the candidates
themselves.Section 11 (b) does, of course, limit the right of free
speech and ofaccess to mass media of the candidates themselves. The
limitation,however, bears a clear and reasonable connection with
theconstitutional objective set out in Article IX (C) (4) and
Article II(26) of the Constitution. For it is precisely in the
unlimitedpurchase of print space and radio and television time that
theresources of the financially affluent candidates are likely to
make acrucial difference.
DAVIDE, JR., J., Concurring Opinion:
Constitutional Law; Election Law; Freedom of Speech; Freedomof
speech and of the press or of expression which the Bill of
Rightsguarantees is not an absolute right now settled.It is now
settledthat the freedom of speech and of the press, or of
expression, whichthe Bill of Rights guarantees, is not an absolute
right.
Same; Same; Same; Section 11 (b) neither constitutes
prescribedabridgment of the freedom of expression nor prohibits
free speech, itmerely provides the rules as to the manner, time and
place for itsexercise during a very limited period.This provision,
understood in
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the light of Section 4, Article IX-C of the Constitution, is
areasonable regulation enacted to accomplish the desired
objectivesand purposes earlier mentioned. It neither constitutes
proscribedabridgment of the freedom of expression nor prohibits
free speech; itmerely provides the rules as to the manner, time and
place for itsexercise during a very limited period. It makes
reference to Sections90 and 92 of Batas Pambansa Blg. 881 on
COMELEC time andCOMELEC space.
Same; Same; Same; Statute.Even granting for the sake ofargument
that a doubt exists as to the constitutionality of thechallenged
provision, the doubt must be resolved in favor of itsvalidity.
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4 SUPREME COURT REPORTS ANNOTATED
National Press Club vs. Commission on Elections
Same; Same; Same; Same; An act of legislative approved by
theexecutive is presumed to be within constitutional
bounds.Thereason for this is that an act of the legislature
approved by theexecutive is presumed to be within constitutional
bounds. Theresponsibility of upholding the Constitution rests not
only on thecourts, but also on the legislature and the executive as
well.
PADILLA, J., Concurring Opinion:
Constitutional Law; Election Law; Freedom of Speech;
PolicePower; It is fundamental that these freedoms are not immune
toregulation by the State in the legitimate exercise of its police
power.But it is fundamental that these freedoms are not immune
toregulation by the State in the legitimate exercise of its police
power.
Same; Same; Same; Same; Police power rests upon publicnecessity
and upon the right of the State and of the public to
self-protection.Police power rests upon public necessity and upon
theright of the State and of the public to self-protection. For
thisreason, it is co-extensive with the necessities of the case and
thesafeguards of public interests.
Same; Same; Same; Same.In short, the law in question (Sec.11,
Rep. Act No. 6646) has been enacted for a legitimate public
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purpose and the means it employs to achieve such purpose
arereasonable and even timely.
GUTIERREZ, JR., J., Dissenting Opinion:
Constitutional Law; Election Law; Freedom of Speech.Section11
(b) of R.A. No. 6646 will certainly achieve one resultkeep
thevoters ignorant of who the candidates are and what they stand
for.
CRUZ, J., Dissenting Opinion:
Constitutional Law; Election Law; Freedom of Speech; The
mostimportant objection to Section 11 (b) is that it constitutes
priorrestraint on the dissemination of ideas.But the most
importantobjection to Section 11(b) is that it constitutes prior
restraint on thedissemination of ideas. In a word, it is
censorship. It is that officiousfunctionary of the repressive
government who tells the citizen thathe may speak only if allowed
to do so, and no more and no less thanwhat he is permitted to say
on pain of punishment should he be sorash as to disobey.
5
VOL. 207, MARCH 5, 1992 5
National Press Club vs. Commission on Elections
Same; Same; Same; Same; What Section 11(b) does is prohibitthe
advertisement or commercial itself in what is unmistakably anact of
censorship that finds no justification in the
circumstancespresented.What is challenged in the case at bar is not
that lawbut Section 11(b), which does not merely require mention of
thecandidates rivals in the paid advertisement or commercial,
aninnocuous enough requirement, to be sure. What Section 11(b)
doesis prohibit the advertisement or commercial itself in what
isunmistakably an act of censorship that finds no justification in
thecircumstances here presented. Surely, that blanket and
absoluteprohibition to use the mass media as a vehicle for the
articulation ofideas cannot, by the standards of Badoy, be
considered tooinsignificant to create any appreciable dent on the
individualsliberty of expression.
Same; Same; Same; Same; All the channels of communication
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should be kept open to ensure the widest dissemination
ofinformation bearing on the forthcoming elections.I submit that
allthe channels of communication should be kept open to insure
thewidest dissemination of information bearing on the
forthcomingelections. An uninformed electorate is not likely to be
circumspectin the choice of the officials who will represent them
in the councilsof government. That they may exercise their
suffrages wisely, it isimportant that they be apprised of the
election issues, including thecredentials, if any, of the various
aspirants for public office. This isespecially necessary now in
view of the dismaying number ofmediocrities who, by an incredible
aberration of ego, are relying ontheir money, or their tinsel
popularity, or their private armies, togive them the plume of
victory.
PARAS, J., Dissenting Opinion:
Constitutional Law; Election Law; Freedom of Speech; Thefreedom
to advertise ones political candidacy in the various forms ofmedia
is clearly a significant part of our freedom of expression andof
our right of access to information.The freedom to advertiseones
political candidacy in the various forms of media is clearly
asignificant part of our freedom of expression and of our right
ofaccess to information. Freedom of expression in turn
includesamong other things, freedom of speech and freedom of the
press.Restrict these freedoms without rhyme or reason, and you
violatethe most valuable feature of the democratic way of life.
PETITIONS to review the decision of the Commission
onElections.
The facts are stated in the opinion of the Court.
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6 SUPREME COURT REPORTS ANNOTATED
National Press Club vs. Commission on Elections
Ricardo C. Valmonte, Erico B. Aumentado, ResurrecionS. Salvilla,
Perfecto B. Fernandez, Jose P. Fernandez,Fernando Ma. Alberto and
Cristobal P. Fernandez forpetitioners.
The Solicitor General for respondents.
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FELICIANO, J.:
In the three (3) consolidated Petitions before us, thecommon
question raised by petitioners is theconstitutionality of Section
11 (b) of Republic Act No. 6646.
Petitioners in these cases consist of representatives ofthe mass
media which are prevented from selling ordonating space and time
for political advertisements; two(2) individuals who are candidates
for office (one fornational and the other for provincial office) in
the comingMay 1992 elections; and taxpayers and voters who
claimthat their right to be informed of election issues and
ofcredentials of the candidates is being curtailed.
It is principally argued by petitioners that Section 11 (b)of
Republic Act No. 6646 invades and violates theconstitutional
guarantees comprising freedom ofexpression. Petitioners maintain
that the prohibitionimposed by Section 11 (b) amounts to
censorship, because itselects and singles out for suppression and
repression withcriminal sanctions, only publications of a
particularcontent, namely, media-based election or
politicalpropaganda during the election period of 1992. It
isasserted that the prohibition is in derogation of mediasrole,
function and duty to provide adequate channels ofpublic information
and public opinion relevant to electionissues. Further, petitioners
contend that Section 11 (b)abridges the freedom of speech of
candidates, and that thesuppression of media-based campaign or
politicalpropaganda except those appearing in the Comelec space
ofthe newspapers and on Comelec time of radio andtelevision
broadcasts, would bring about a substantialreduction in the
quantity or volume of informationconcerning candidates and issues
in the election therebycurtailing and limiting the right of voters
to informationand opinion.
The statutory text that petitioners ask us to strike downas
unconstitutional is that of Section 11 (b) of Republic ActNo. 6646,
known as the Electoral Reforms Law of 1987:SUPREME COURT REPORTS
ANNOTATED
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National Press Club vs. Commission on Elections
"Sec. 11 Prohibited Forms of Election Propaganda.In addition
tothe forms of election propaganda prohibited under Section 85
ofBatas Pambansa Blg. 881, it shall be unlawful;
x x x x x x x x xb) for any newspapers, radio broadcasting or
television station,
other mass media, or any person making use of the mass media
tosell or to give free of charge print space or air time for
campaign orother political purposes except to the Commission as
provided underSections 90 and 92 of Batas Pambansa Blg. 881. Any
mass mediacolumnist, commentator, announcer or personality who is
acandidate for any elective public office shall take a leave of
absencefrom his work as such during the campaign period.
(Italicssupplied)
Section 11 (b) of Republic Act No. 6646 should be takentogether
with Sections 90 and 92 of B.P. Blg. 881, known asthe Omnibus
Election Code of the Philippines, whichprovide respectively as
follows:
Sec. 90. Comelec space.The Commission shall procure space in
atleast 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 insaid province or city, which shall be known as Comelec
Spacewherein candidates can announce their candidacy. Said space
shallbe allocated, free of charge, equally and impartially by
theCommission among all candidates within the area in which
thenewspaper is circulated.
x x x x x x x x xSec. 92. Comelec time.The Commission shall
procure radio and
television time to be known as Comelec Time which shall
beallocated equally and impartially among the candidates within
thearea of coverage of all radio and television stations. For
thispurpose, the franchise of all radio broadcasting and
televisionstations are hereby amended so as to provide radio or
televisiontime, free of charge, during the period of the campaign.
(Italicssupplied)
The objective which animates Section 11 (b) is theequalizing, as
far as practicable, the situations of rich and
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poor candidates by preventing the former from enjoying theundue
advantage offered by huge campaign war chests.Section 11 (b)
prohibits the sale or donation of print spaceand air time for
campaign or other political purposesexcept to the Commission on
Elections (Comelec). Uponthe other hand, Sections 90 and 92 of
the
8
8 SUPREME COURT REPORTS ANNOTATED
National Press Club vs. Commission on Elections
Omnibus Election Code require the Comelec to procure"Comelec
space in newspapers of general circulation inevery province or city
and Comelec time on radio andtelevision stations. Further, the
Comelec is statutorilycommanded to allocate Comelec space and
Comelec timeon a free of charge, equal and impartial basis among
allcandidates within the area served by the newspaper orradio and
television station involved.
No one seriously disputes the legitimacy or theimportance of the
objective sought to be secured by Section11 (b) (of Republic Act
No. 6646) in relation to Sections 90and 92 (of the Omnibus Election
Code). That objective is ofspecial importance and urgency in a
country which, likeours, is characterized by extreme disparity in
incomedistribution between the economic elite and the rest
ofsociety, and by the prevalence of poverty, with the bulk ofour
population falling below the poverty line. It issupremely
important, however, to note that that objectiveis not only a
concededly legitimate one; it has also beengiven constitutional
status by the terms of Article IX (C) (4)of the 1987 Constitution
which provides as follows:
Sec. 4. The Commission [on Elections] may, during the
electionperiod, supervise or regulate the enjoyment or utilization
of allfranchises or permits for the operation of transportation and
otherpublic utilities, media of communication or information, all
grants,special privileges, or concessions granted by the Government
or anysubdivision, agency, or instrumentality thereof, including
anygovernment-owned or controlled corporation or its subsidiary.
Suchsupervision or regulation shall aim to ensure equal
opportunity,
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time, and space, and the right to reply, including reasonable,
equalrates therefor, for public information campaigns and forums
amongcandidates in connection with the objective of holding free,
orderly,honest, peaceful, and credible elections. (Italics
supplied)
The Comelec has thus been expressly authorized by
theConstitution to supervise or regulate the enjoyment
orutilization of the franchises or permits for the operation
ofmedia of communication and information. The fundamentalpurpose of
such supervision or regulation has beenspelled out in the
Constitution as the ensuring of equalopportunity, time, and space,
and the right to reply, as wellas uniform and reasonable rates of
charges for the use ofsuch media facilities, in connection with
9
VOL. 207, MARCH 5, 199 9
National Press Club vs. Commission on Elections
public information campaigns and forums amongcandidates.
1
It seems a modest proposition that the provision of theBill of
Rights which enshrines freedom of speech, freedomof expression and
freedom of the press (Article III [4],Constitution) has to be taken
in conjunction with Article IX(C) (4) which may be seen to be a
special provisionapplicable during a specific limited periodi.e.,
during theelection period. It is difficult to overemphasize the
specialimportance of the rights of freedom of speech and freedomof
the press in a democratic polity, in particular when theyrelate to
the purity and integrity of the electoral processitself, the
process by which the people identify those whoshall have governance
over them. Thus, it is frequentlysaid that these rights are
accorded a preferred status in ourconstitutional hierarchy. Withal,
the rights of free speechand free press are not unlimited rights
for they are not theonly important and relevant values even in the
mostdemocratic of polities. In our own society, equality
ofopportunity to proffer oneself for public office, withoutregard
to the level of financial resources that one may haveat ones
disposal, is clearly an important value. One of the
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basic state policies given constitutional rank by Article
II,Section 26 of the Constitution is the egalitarian demandthat the
State shall guarantee equal access toopportunities for public
service and prohibit politicaldynasties as may be defined by
law.
2
The technical effect of Article IX (C) (4) of theConstitution
may be seen to be that no presumption ofinvalidity arises in
respect of exercises of supervisory orregulatory authority on the
part of the Comelec for thepurpose of securing equal opportunity
among candidatesfor political office, although such supervision or
regulationmay result in some limitation of the rights of free
speechand free press. For supervision or regulation of
theoperations of media enterprises is scarcely conceiv-
_______________
1 See the discussion on Article IX (C) (4) in the
Constitutional
Commission in Records of the Constitutional Commission, Vol. 1,
pp. 624,
631-2, 662-3.2 The goal of equalizing access to opportunities
for public office (both
elective and appointive) for greater numbers of people, was
stressed in
the discussions in the Constitutional Commission; Records of
the
Constitutional Commission, Vol. 4, pp. 945, 955-6.
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10 SUPREME COURT REPORTS ANNOTATED
National Press Club vs. Commission on Elections
able without such accompanying limitation. Thus, theapplicable
rule is the general, time-honored onethat astatute is presumed to
be constitutional and that the partyasserting its
unconstitutionality must discharge the burdenof clearly and
convincingly proving that assertion.
3
Put in slightly different terms, there appears no
presentnecessity to fall back upon basic principles relating to
thepolice power of the State and the requisites forconstitutionally
valid exercise of that power. The essentialquestion is whether or
not the assailed legislative oradministrative provisions constitute
a permissible exerciseof the power of supervision or regulation of
the operations
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of communication and information enterprises during anelection
period, or whether such act has gone beyondpermissible supervision
or regulation of media operationsso as to constitute
unconstitutional repression of freedom ofspeech and freedom of the
press. The Court considers thatSection 11 (b) has not gone outside
the permissible boundsof supervision or regulation of media
operations duringelection periods.
In the constitutional assaying of legislative provisionslike
Section 11 (b), the character and extent of thelimitations
resulting from the particular measure beingassayed upon freedom of
speech and freedom of the pressare essential considerations. It is
important to note thatthe restrictive impact upon freedom of speech
and freedomof the press of Section 11 (b) is circumscribed by
certainimportant limitations.
Firstly, Section 11 (b) is limited in the duration of
itsapplicability and enforceability. By virtue of the operationof
Article IX (C) (4) of the Constitution, Section 11 (b) islimited in
its applicability in time to election periods. By itsResolution No.
2328 dated 2 January 1992, the Comelec,acting under another
specific grant of authority by theConstitution (Article IX [C]
[9]), has defined the periodfrom 12 January 1992 until 10 June 1992
as the relevantelection period.
Secondly, and more importantly, Section 11 (b) is limitedin
its
________________
3 E.g., Abbas v. Commission on Elections, 179 SCRA 287 (1989);
People
v. Dacuycuy, 173 SCRA 90 (1989); Heirs of Ordona v. Reyes, 125
SCRA
320 (1983); Peralta v. Commission on Elections, 82 SCRA 30
(1978); Salas
v. Jarencio, 46 SCRA 734 (1970).
11
VOL. 207, MARCH 5, 1992 11
National Press Club vs. Commission on Elections
scope of application. Analysis of Section 11 (b) shows that
itpurports to apply only to the purchase and sale, including
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purchase and sale disguised as a donation,4 of print space
and air time for campaign or other political purposes.Section 11
(b) does not purport in any way to restrict thereporting by
newspapers or radio or television stations ofnews or news-worthy
events relating to candidates, theirqualifications, political
parties and programs ofgovernment. Moreover, Section 11 (b) does
not reachcommentaries and expressions of belief or opinion
byreporters or broadcasters or editors or commentators orcolumnists
in respect of candidates, their qualifications,and programs and so
forth, so long at least as suchcomments, opinions and beliefs are
not in factadvertisements for particular candidates covertly paid
for.In sum, Section 11 (b) is not to be read as reaching anyreport
or commentary or other coverage that, in responsiblemedia, is not
paid for by candidates for political office. Weread Section 11 (b)
as designed to cover only paid politicaladvertisements of
particular candidates.
The above limitation in scope of application of Section
11(b)that it does not restrict either the reporting of or
theexpression of belief or opinion or comment upon
thequalifications and programs and activities of any and
allcandidates for officeconstitutes the critical distinctionwhich
must be made between the instant case and that ofSanidad v.
Commission on Elections.
5 In Sanidad, the
Court declared unconstitutional Section 19 of ComelecResolution
No. 2167 which provided as follows:
Sec. 19. Prohibition on Columnists, Commentators or
AnnouncersDuring the plebiscite campaign period, on the day before
and onplebiscite day, no mass media columnist, commentator, an-
_______________
4 Because of the financial implications involved, true donations
by media
enterprises of print space and air time for political
advertisements are not
likely to be substantial in number or in peso volume. The
principal effect of the
phrase or to give free of charge is thus to catch purchases and
sales disguised
as donations either given directly by media enterprises, or
indirectly through
an intervening purchaserdonor.
5 181 SCRA 529 (1990).
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12 SUPREME COURT REPORTS ANNOTATED
National Press Club vs. Commission on Elections
nouncer or personality shall use his column or radio or
televisiontime to campaign for or against the plebiscite
issues.
Resolution No. 2167 had been promulgated by the Comelecin
connection with the plebiscite mandated by R.A. No.6766 on the
ratification or adoption of the Organic Act forthe Cordillera
Autonomous Region. The Court held thatResolution No. 2167
constituted a restriction of the freedomof expression of petitioner
Sanidad, a newspaper columnistof the Baguio Midland Courier, for no
justifiable reason.The Court, through Medialdea, J., said:
x x x [N]either Article, IX-C of the Constitution nor Section
11[b],2nd par. of R.A. 6646 can be construed to mean that the
Comelechas also been granted the right to supervise and regulate
theexercise by media practitioners themselves of their right
toexpression during plebiscite periods. Media practitioners
exercisingtheir freedom of expression during plebiscite periods are
neither thefranchise holders nor the candidates. In fact, there are
no candidatesinvolved in the plebiscite. Therefore, Section 19 of
ComelecResolution No. 2176 has no statutory basis.
6 (Italicized partly in
the original and partly supplied)
There is a third limitation upon the scope of application
ofSection 11 (b). Section 11 (b) exempts from its prohibitionthe
purchase by or donation to the Comelec of print spaceor air time,
which space and time Comelec is thenaffirmatively required to
allocate on a fair and equal basis,free of charge, among the
individual candidates for electivepublic offices in the province or
city served by thenewspaper or radio or television station. Some of
thepetitioners are apparently apprehensive that Comelecmight not
allocate Comelec time or Comelec space on afair and equal basis
among the several candidates. Shouldsuch apprehensions materialize,
candidates who are in factprejudiced by unequal or unfair
allocations effected byComelec will have appropriate judicial
remedies available,so long at least as this Court sits. Until such
time, however,the Comelec is entitled to the benefit of the
presumptionthat official duty will be or is being regularly carried
out. It
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seems appropriate here to recall
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6 181 SCRA at 534.
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VOL. 207, MARCH 5, 1992 13
National Press Club vs. Commission on Elections
what Justice Laurel taught in Angara v. ElectoralCommission
7 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 isnot
susceptible of being abused. Should it be objected thatthe Comelec
might refrain from procuring Comelec timeand Comelec space, much
the same considerations shouldbe borne in mind. As earlier noted,
the Comelec iscommanded by statute to buy or procure Comelec
timeand Comelec space in mass media, and it must bepresumed that
Comelec will carry out that statutorycommand. There is no
indication, so far as the record herewould show, that Comelec would
not in fact carry out itsstatutory duty in this connection, and if
it does fail to do so,once again, the candidate or candidates who
feel aggrievedhave judicial remedies at their disposal.
The points that may appropriately be underscored arethat Section
11 (b) does not cut off the flow of mediareporting, opinion or
commentary about candidates, theirqualifications and platforms and
promises. Newspaper,radio broadcasting and television stations
remain quite freeto carry out their regular and normal information
andcommunication operations. Section 11 (b) does notauthorize any
intervention and much less control on thepart of Comelec in respect
of the content of the normaloperations of media, nor in respect of
the content of politicaladvertisements which the individual
candidates are quitefree to present within their respective
allocated Comelectime and Comelec space. There is here no
officiousfunctionary of [a] repressive government dictating
whatevents or ideas reporters, broadcasters, editors or
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commentators may talk or write about or display on TVscreens.
There is here no censorship, whether disguised orotherwise. What
Section 11 (b), viewed in context, in factdoes is to limit paid
partisan political advertisements tofora other than modern mass
media, and to Comelec timeand Comelec space in such mass media.
Section 11 (b) does, of course, limit the right of freespeech
and of access to mass media of the candidatesthemselves. The
limitation, however, bears a clear andreasonable connection
________________
7 63 Phil. 139, 177 (1936).
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14 SUPREME COURT REPORTS ANNOTATED
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with the constitutional objective set out in Article IX (C)
(4)and Article II (26) of the Constitution. For it is precisely
inthe unlimited purchase of print space and radio andtelevision
time that the resources of the financially affluentcandidates are
likely to make a crucial difference. Here liesthe core problem of
equalization of the situations of thecandidates with deep pockets
and the candidates withshallow or empty pockets that Article IX (C)
(4) of theConstitution and Section 11 (b) seek to address. That
thestatutory mechanism which Section 11 (b) brings intooperation is
designed and may be expected to bring aboutor promote equal
opportunity, and equal time and space, forpolitical candidates to
inform all and sundry aboutthemselves, cannot be gainsaid.
My learned brother in the Court Cruz, J. remonstrates,however,
that [t]he financial disparity among thecandidates is a fact of
life that cannot be corrected bylegislation except only by the
limitation of their respectiveexpenses to a common maximum. The
flaw in theprohibition under challenge is that while the rich
candidateis barred from buying mass media coverage, it
neverthelessallows him to spend his funds on other campaign
activities
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also inaccessible to his straitened rival. True enoughSection 11
(b) does not, by itself or in conjunction withSections 90 and 92 of
the Omnibus Election Code, placepolitical candidates on complete
and perfect equality interse without regard to their financial
affluence or lackthereof. But a regulatory measure that is less
thanperfectly comprehensive or which does not completelyobliterate
the evil sought to be remedied, is not for thatreason alone
constitutionally infirm. The Constitution doesnot, as it cannot,
exact perfection in governmentalregulation. All it requires, in
accepted doctrine, is that theregulatory measure under challenge
bear a reasonablenexus with the constitutionally sanctioned
objective. Thatthe supervision or regulation of communication
andinformation media is not, in itself, a forbidden modality ismade
clear by the Constitution itself in Article IX (C) (4).
It is believed that, when so viewed, the limiting impactof
Section 11 (b) upon the right to free speech of thecandidates
themselves may be seen to be not undulyrepressive or unreasonable.
For, once again, there isnothing in Section 11 (b) to prevent media
reporting of andcommentary on pronounce-
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VOL. 207, MARCH 5, 1992 15
National Press Club vs. Commission on Elections
ments, activities, written statements of the
candidatesthemselves. All other fora remain accessible to
candidates,even for political advertisements. The requisites of
fairnessand equal opportunity are, after all, designed to benefit
thecandidates themselves.
Finally, the nature and characteristics of modern massmedia,
especially electronic media, cannot be totallydisregarded.
Realistically, the only limitation upon the freespeech of
candidates imposed is on the right of candidatesto bombard the
helpless electorate with paidadvertisements commonly repeated in
the mass media adnauseam. Frequently, such repetitive political
commercialswhen fed into the electronic media themselves
constituteinvasions of the privacy of the general electorate. It
might
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be supposed that it is easy enough for a person at homesimply to
flick off his radio or television set. But it is rarelythat simple.
For the candidates with deep pockets maypurchase radio or
television time in many, if not all, themajor stations or channels.
Or they may directly orindirectly own or control the stations or
channelsthemselves. The contemporary reality in the Philippines
isthat, in a very real sense, listeners and viewers constitute
acaptive audience.
8
_______________
8 In noting the phenomenon of the captive audience, the
Supreme
Court of the United States in Columbia Broadcasting System
v.
Democratic National Committee (412 US 94, 36 L Ed 2d 772
[1973]), said:
x x x. The captive nature of the broadcasting audience was
recognized as
early as 1924, when Commerce Secretary Hoover remarked at the
Fourth
National Radio Conference that the radio listener does not have
the same
option that the reader of publications hasto ignore advertising
in which he is
not interestedand he may resent its invasion of his set. As the
broadcast
media became more pervasive in our society, the problem has
become more
acute. In a recent decision upholding the Commissions power to
promulgate
rules regarding cigarette advertising, Judge Bazelon, writing
for a unanimous
Court of Appeals, noted some of the effects of the ubiquitous
commercial:
Written messages are not communicated unless they are read, and
reading requires an
affirmative act. Broadcast messages, in contrast, are in the
air. In an age of
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The paid political advertisements introjected into theelectronic
media and repeated with mind-deadeningfrequency, are commonly
intended and crafted, not so muchto inform and educate as to
condition and manipulate, notso much to provoke rational and
objective appraisal ofcandidates qualifications or programs as to
appeal to thenon-intellective faculties of the captive and
passiveaudience. The right of the general listening and
viewingpublic to be free from such intrusions and their
subliminal
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effects is at least as important as the right of candidates
toadvertise themselves through modern electronic media andthe right
of media enterprises to maximize their revenuesfrom the marketing
of packaged candidates.
WHEREFORE, the Petitions should be, as they arehereby, DISMISSED
for lack of merit. No pronouncementas to costs.
SO ORDERED.
Narvasa (C.J.), Melencio-Herrera, Bidin, Grio-Aquino, Medialdea,
Regalado, Romero and Nocon, JJ.,concur.
Gutierrez, Jr., Cruz, and Paras, JJ., Please seedissent.
Padilla, Davide, Jr., JJ., See Concurring Opinion. Bellosillo,
J., Did not take part in the deliberation.
CONCURRING OPINION
DAVIDE, JR., J.:
I fully concur with the majority opinion. I wish, however,
toexpress my thoughts on some material points.
_______________
omnipresent radio, there scarcely breathes a citizen who does
not know some
part of a leading cigarette jingle by heart. Similarly, an
ordinary habitual
television watcher can avoid these commercials only by
frequently leav` Banzhaf
v. FCC, 132 US App DC 14, 32-33, 405 F2d 1082, 1100-1101 (1968),
cert denied
396 US 842, 24 L Ed 2d 93, 90 S Ct 50 (1969).
It is no answer to say that because we tolerate pervasive
commercial
advertisements we can also live with its political counterparts.
(36 L. ed
2d at 798; italics supplied)
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The constitutional issue raised in these cases must bedecided in
the light of the provisions of our ownConstitution and not on
orthodox principles or classicaldefinitions of certain rights which
have, in the course oftime and as a result of the interplay of
societal forcesrequiring the balancing of interests and values,
beenunchained from their absolutist moorings.
It is now settled that the freedom of speech and of thepress, or
of expression, which the Bill of Rights guarantees,is not an
absolute right.
Indeed, even in American jurisprudence, theoverwhelming weight
of authority maintains that theright or privilege of free speech
and publication,guaranteed by the Constitutions of the United
States andof the several states, has its limitations; the right is
notabsolute at all times and under all circumstances,
althoughlimitations are recognized only in exceptional
cases.Freedom of speech does not comprehend the right to
speakwhenever, however, and wherever one pleases, and themanner,
and place, or time of public discussion can beconstitutionally
controlled.
1
The foregoing rule proceeds from the principle thatevery right
or freedom carries with it the correlative dutyto exercise it
responsibly and with due regard for the rightsand freedoms of
others. In short, freedom is not freedomfrom responsibility, but
with responsibility.
I respectfully submit that there can be no higher form
oflimitation to a right than what the Constitution
itselfauthorizes. On this, both the lettered and the
unletteredcannot quarrel. In respect to freedom of speech
orexpression and of the press vis-a-vis the electoral process,the
present Constitution lays downs certain principlesauthorizing
allowable restraints thereon. I refer to thefollowing provisions of
the 1987 Constitution, to wit:
(1) Section 26 of Article II. (Declaration of Principles and
otherPolicies) which reads:
The State shall guarantee equal access to opportunities for
public
service, and prohibit political dynasties as may be defined
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1 16A Am. Jur. 2d, 341-342.
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18 SUPREME COURT REPORTS ANNOTATED
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by law. (italics supplied)
(2) Section 1 of Article XIII (Social Justice and Human
rights)which reads:
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. (italics supplied)
(3) Section 4 of Article IX-C 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. (italics supplied)
There can be no doubt that the first two (2)
provisionscontemplate measures that would bridge the gap betweenthe
rich and the poor in our society. In the past, theequilibrium
sought to be achieved was only in the economicand social fields.
Thus, before the advent of the 1987Constitution, social justice was
defined as:
Social justice is neither communism, nor despotism, nor
atomism,nor anarchy, but the humanization of laws and the
equalization ofsocial and economic forces by the State so that
justice in its rationaland objectively secular conception may at
least be approximated.Social justice means the promotion of the
welfare of all the people,
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the adoption by the Government of measures calculated to
insureeconomic stability of all the competent elements of society,
throughthe maintenance of a proper economic and social equilibrium
in theinterrelations of the members of the community,
constitutionally,through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of
powers underlying theexistence of
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VOL. 207, MARCH 5, 1992 19
National Press Club vs. Commission on Elections
all governments on the time-honored principle of salus populi
estsuprema lex.
Social justice, therefore, must be founded on the recognition
ofthe necessity of interdependence among divers and diverse units
ofa society and of the protection that should be equally and
evenlyextended to all groups as a combined force in our social
andeconomic life, consistent with the fundamental and
paramountobjective of the state of promoting the health, comfort,
and quiet ofall persons, and of bringing about the greatest good to
the greatestnumber.
2
Aware of the lamentable fact that in the Philippines, nogap
between these two unavoidable extremes of society ismore pronounced
than that in the field of politics, and evermindful of the dire
consequences thereof, the framers of thepresent Constitution saw it
fit to diffuse political power inthe social justice provisions.
Ours has been a politics of theelite, the rich, the powerful and
the pedigreed. The victoryof a poor candidate in an election is
almost always anexception. Arrayed against the vast resources of a
wealthyopponent, the former, even if he is the most qualified
andcompetent, does not stand a fighting chance. Of course,there
have been isolated instancesbut yet so few and farbetweenwhen poor
candidates made it.
Forgetting first the evil use of gold, guns and goonswhich only
the rich have access to, and focussing strictly onthe legitimate
aspect of the electoral struggle, propaganda,through the various
forms of media, provides the mostsophisticated and effective means
of reaching the electorate
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and convincing voters to vote for a particular candidate. Itis
in this area, particularly in the use of television, radioand
newspaper, that a poor candidate will not be able tocompete with
his opulent opponents who have all theresources to buy prime
television and radio time and fullpages of leading newspapers. With
radio and televisionpropaganda, the wealthy candidates, even as
they leisurelyrelax in their homes, offices or hotel suites, can
reach everynook and cranny of their municipality, city,
province,district or even the entire Philippines and be seen or
heardat any time of the day and night. During the contractedhours,
their paid hacks can concentrate on dishonoring thepoor and hapless
opponent by
_______________
2 Calalang vs. Williams, et al., 70 Phil. 726.
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20 SUPREME COURT REPORTS ANNOTATED
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hurling innuendoes of defects or vice. With
newspaperadvertisements, the wealthy candidates can reachthousands
of readers daily. A worse scenario obtains wherethe rich candidates
themselves fully or substantially ownor operate a television or
radio station, or publishnewspapers. On the other hand, to a poor
candidate, thecampaign period would sadly prove to be insufficient
forhim to campaign in every barangay, even if he is runningfor a
municipal position. Thus, not only would he alreadybe at a
disadvantage insofar as visibility and presentationof his issues or
program of government are concerned, hewould have no opportunity to
rebut whatever lies hisopponents may spread nor the chance to clear
himself offalse accusations.
Accordingly, in response to the urgent mandate ofSection 1 of
Article XIII aforequoted, Congress passed ameasure, R.A. No. 6646,
otherwise known as the ElectoralReforms Law of 1987,
3 introducing additional reforms to
the electoral system which, inter alia, not only seeks to
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enhance the purity of the electoral process, but also aspiresto
ensure even just an approximation of equality among allcandidates
in their use of media for propaganda purposes.The latter is best
evidenced by the provision challenged inthis case, Section 11 (b),
which reads:
Section 11. Prohibited forms of election propaganda.In
additionto the forms of propaganda prohibited under Section 85 of
BatasPambansa Blg. 881, it shall be unlawful:
x x x
(b) for any newspaper, radio broadcasting or television station,
or
other mass media, or any person making use of the mass media to
sell or
to give free of charge print space or air time for campaign or
other
political purposes except to the Commission as provided under
Sections
90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist,
commentator, announcer or personality who is a candidate for
any
elective public office shall take a leave of absence from his
work as such
during the campaign period.
This provision, understood in the light of Section 4,
ArticleIX-C of the Constitution, is a reasonable regulation
enactedto accomplish the desired objectives and purposes
earliermen-
_______________
3 Approved on 5 January 1988.
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VOL. 207, MARCH 5, 1992 21
National Press Club vs. Commission on Elections
tioned. It neither constitutes proscribed abridgment of
thefreedom of expression nor prohibits free speech; it
merelyprovides the rules as to the manner, time and place for
itsexercise during a very limited period. It makes reference
toSections 90 and 92 of Batas Pambansa Blg. 881 onCOMELEC time and
COMELEC space. Said sectionsread in full as follows:
SEC. 90. Comelec space.The Commission shall procure space in
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at least one newspaper of general circulation in every province
orcity: Provided, however, That in the absence of said
newspaper,publication shall be done in any other magazine or
periodical insaid province or city, which shall be known as Comelec
Spacewherein candidates can announce their candidacy. Said space
shallbe allocated, free of charge, equally and impartially by
theCommission among all candidates within the area in which
thenewspaper is circulated. (Sec. 45, 1978 EC)
x x xSEC. 92. Comelec time.ZThe Commission shall procure
radio
and television time to be known as Comelec Time which shall
beallocated equally and impartially among the candidates within
thearea of coverage of all radio and television stations. For
thispurpose, the franchise of all radio broadcasting and
televisionstations are hereby amended so as to provide radio or
televisiontime, free of charge, during the period of the campaign.
(Sec. 46,1978 EC)
Obviously then, the airing and printing of a candidatespolitical
advertisements can be doneand is evenencouraged to be doneduring
the COMELEC time andwithin the COMELEC space. This authority of
theCOMELEC is no longer purely statutory. It is nowconstitutional
pursuant to the clear mandate of Section 4 ofArticle IX-C, which is
quoted above. This constitutionalgrant removes whatever doubt one
may have on the splitverdict of this Court in Badoy vs. Ferrer, et
al.,4Interpreting a related provision, Section 12(f) of R.A.
No.6132, reading:
The Commission on Elections shall endeavor to obtain free
spacefrom newspapers, magazines and periodicals which shall be
knownas
________________
4 35 SCRA 285.
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Comelec space, and shall allocate this space equally and
impartiallyamong all candidates within the area in which the
newspapers arecirculated. Outside of said Comelec space, it shall
be unlawful toprint or publish, or cause to be printed or
published, anyadvertisement, paid comment or paid article in
furtherance of or inopposition to the candidacy of any person for
delegate, ormentioning the name of any candidate and the fact of
his candidacy,unless all the names of all other candidates in the
district in whichthe candidate is running are also mentioned with
equalprominence.
this Court ruled:
Against the background of such facilities accorded by the law
forall candidates, rich and poor alike, and the prohibitions as
well aspenal sanctions to insure the sanctity of the ballot
againstdesecration and the equality of chances among the
candidates, therestriction on the freedom of expression of the
candidate or anyother individual prescribed in par. F of Sec. 12 is
so narrow as not toaffect the substance and vitality of his freedom
of expression itself.
x x xHence, consistent with our opinion expressed in the cases
of
Imbong vs. Comelec and Gonzales vs. Comelec [35 SCRA 28],
thisslight limitation of the freedom of expression of the
individual,whether candidate or not, as expressed in par. F of Sec.
12, is onlyone of the many devices employed by the law to prevent a
clear andpresent danger of the perversion or prostitution of the
electoralapparatus and of the denial of the equal protection of the
laws.
The fears and apprehensions of petitioner concerning his
libertyor expression in these two cases, applying the less
stringentbalancing-of-interests criterion, are far outweighed by
the allimportant substantive interests of the State to preserve the
purityof the ballot and to render more meaningful and real the
guaranteeof the equal protection of the laws.
In the fairly recent case of Sanidad vs. Commission
onElections,
5 this Court sustained, in effect, the validity of
Section 11 (b) of R.A. No. 6646. Thus:
However, it is clear from Art. IX-C of the 1987 Constitution
thatwhat was granted to the Comelec was the power to supervise
and
_______________
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5 181 SCRA 529 (29 January 1990).
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National Press Club vs. Commission on Elections
regulate the use and enjoyment of franchises, permits or
othergrants issued for the operation of transportation or other
publicutilities, media of communication or information to the end
thatequal opportunity, time and space, and the right to reply,
includingreasonable, equal rates therefor, for public information
campaignsand forums among candidates are ensured. The evil sought
to beprevented by this provision is the possibility that a
franchise holdermay favor or give any undue advantage to a
candidate in terms ofadvertising space or radio or television time.
This is also the reasonwhy a columnist, commentator, announcer or
personality, who is acandidate for any elective office is required
to take a leave ofabsence from his work during the campaign period
(2nd par. Section11(b) R.A. 6646). It cannot be gainsaid that a
columnist orcommentator who is also a candidate would be more
exposed to thevoters to the prejudice of other candidates unless
required to take aleave of absence.
However, neither Article IX-C of the Constitution nor
Section11(b), 2nd par. of R.A. 6646 can be construed to mean that
theComelec has also been granted the right to supervise and
regulatethe exercise by media practitioners themselves of their
right toexpression during plebiscite periods. Media practitioners
exercisingtheir freedom of expression during plebiscite periods are
neither thefranchise holders nor the candidates. In fact, there are
nocandidates involved in a plebiscite. Therefore, Section 19 of
ComelecResolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16,
1970,where the constitutionality of the prohibition of certain
forms ofelection propaganda was assailed, We ruled therein that
theprohibition is a valid exercise of the police power of the state
toprevent the perversion and prostitution of the electoral
apparatusand of the denial of equal protection of the laws. The
evil sought tobe prevented in an election which led to Our ruling
in that case doesnot obtain in a plebiscite. In a plebiscite, votes
are taken in an areaon some special political matter unlike in an
election where votesare cast in favor of specific persons for some
office. In other words,
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the electorate is asked to vote for or against issues, not
candidatesin a plebiscite.
Even granting for the sake of argument that a doubt existsas to
the constitutionality of the challenged provision, thedoubt must be
resolved in favor of its validity. As this Courtstated in Paredes,
et al. vs. Executive Secretary, et al.:
6
_______________
6 128 SCRA 6.
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x x x it is in accordance with the settled doctrine that between
twopossible constructions, one avoiding a finding of
unconstitutionalityand the other yielding such a result, the former
is to be preferred.That which will save, not that which will
destroy, commends itselffor acceptance. After all, the basic
presumption all these years isone of validity. The onerous task of
proving otherwise is on theparty seeking to nullify a statute. It
must be proved by clear andconvincing evidence that there is an
infringement of aconstitutional provision, save in those cases
where the challengedact is void on its face. Absent such a showing,
there can be nofinding of unconstitutionality. A doubt, even if
well-founded, doesnot suffice. Justice Malcolms aphorism is
apropos: To doubt is tosustain.
7
The reason for this is that an act of the legislatureapproved by
the executive is presumed to be withinconstitutional bounds. The
responsibility of upholding theConstitution rests not only on the
courts, but also on thelegislature and the executive as well.
For the Court to strike out their acts asunconstitutional,
nothing less than clear and convincingevidence of such breach of
the Constitution must be shown.
Petitioners have not acquitted themselves of that duty.The
petitions then must be dismissed for lack of merit.
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CONCURRING OPINION
PADILLA, J.:
I will state in language as simple as I can muster why Ibelieve
the challenged law is constitutional.
Sec. 11 of Republic Act No. 6646, otherwise known as
theElectoral Reforms Law of 1987, challenged in thesepetitions,
states that:
SEC. 11. Prohibited Forms of Election PropagandaIn addition
tothe forms of election propaganda prohibited under Section 85
ofBatas Pambansa Blg. 881, it shall be unlawful:
x x x
_______________
7 In Yu Cong Eng vs. Trinidad, 47 Phil. 385.
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National Press Club vs. Commission on Elections
(b) for any newspaper, radio broadcasting or television station,
orother mass media, or any person making use of the mass media
tosell or to give free of charge print space or air time for
campaign orother political purposes except to the Commission as
providedunder Sections 90 and 92 of Batas Pambansa Blg. 881. Any
massmedia columnist, commentator, announcement (sic) or
personalitywho is a candidate for any elective public office shall
take a leave ofabsence from his work as such during the campaign
period.
Petitioners contend that the provision is void because it
isviolative of the freedoms of the press, speech andexpression as
guaranteed by Article III, Section 4 of theConstitution.
But it is fundamental that these freedoms are notimmune to
regulation by the State in the legitimateexercise of its police
power.
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The concept of police power is well-established in this
jurisdiction.It has been defined as the state authority to enact
legislation thatmay interfere with personal liberty or property in
order to promotethe general welfare. As defined, it consists of (1)
an imposition ofrestraint upon liberty or property, (2) in order to
foster the commongood.
x x xIt constitutes an implied limitation on the Bill of
Rights.
According to Fernando, it is rooted in the conception that men
inorganizing the state and imposing upon its government
limitationsto safeguard constitutional rights did not intend
thereby to enablean individual citizen or a group of citizens to
obstruct unreasonablythe enactment of such salutary measures
calculated to ensurecommunal peace, safety, good order, and
welfare. Significantly, theBill of rights itself does not purport
to be an absolute guaranty ofindividual rights and liberties. Even
liberty itself, the greatest ofall rights, is not unrestricted
license to act according to ones will. Itis subject to the far more
overriding demands and requirements ofthe greater number.
1
Police power rests upon public necessity and upon the rightof
the State and of the public to self-protection. For thisreason, it
is co-extensive with the necessities of the caseand the safeguards
of public interest.
2
_______________
1 Philippine Association of Service Exporters Inc. vs. Hon.
Franklin M.
Drilon, et al., G.R. No. 81958, June 30, 1988, 163 SCRA 386.2
PCGG vs. Pea, G.R. No. 77663, April 12, 1988, 159 SCRA 556.
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In Section 11 of R.A. No. 6646, the legislature aims touphold
the States policy of guaranteeing equal access toopportunities for
public service.
3 Opportunity to hold a
public office for public service, particularly elective
publicoffices must be equally accessible to qualified and
deservingcitizens. Corollary to this, the legislature also
recognizes
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the power of the Commission on Elections (COMELEC) tosupervise
or regulate the enjoyment or utilization of allfranchises or
permits for the operation of media ofcommunication or information
granted by the governmentor any subdivision, agency or
instrumentality thereof.Such supervision or regulation shall aim to
ensure equalopportunity, time, and space, and the right to
reply,including reasonable, equal rates therefore, for
publicinformation campaigns and forums among candidates
inconnection with the objective of holding free, orderly,honest,
peaceful and credible elections.
4
In Pablito V. Sanidad vs. The Commission on Elections,5
we held that the evil sought to be prevented by Art.
IX-C,Section 4 of the Constitution is the possibility that
afranchise holder may favor or give any undue advantage toa
candidate in terms of advertising space or radio ortelevision
time.
In line with the objective of providing equal opportunityto all
candidates, the questioned provision is intended toact as an
equalizer between the rich and poor candidates.As it is, the
moneyed candidate has the funds to engage ina myriad of campaign
activities. To allow the richcandidates to have free reign over the
use of media for theircampaign would result in an unfair advantage
over thepoor candidates who have no funds or have meager fundsto
secure print space and air time, and yet, they may beequally
qualified and deserving candidates. In Anacleto D.Badoy, Jr. vs.
Jaime N. Ferrer, et al., G.R. No. L-32546,October 17, 1970 35 SCRA
285, this Court declared Section12(F) of R.A. No. 6132 valid and
constitutional, recognizingthat the purpose of the limitation, on
the freedom of thecandidate or his sympathizer to spend his own
money forhis
_______________
3 Art. II, Section 26, 1987 Constitution.4 Art. IX-C, Section 4,
1987 Constitution.5 G.R. No. 90878, January 29, 1990, 181 SCRA
529.
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VOL. 207, MARCH 5, 1992 27
National Press Club vs. Commission on Elections
candidacy alone and not for the furtherance of thecandidacy of
his opponents, is to give the poor candidates afighting chance in
the election. In the same manner, Sec. 11of R.A. No. 6646 aims to
maximize, if not approximate,equality of chances among the various
candidates forelective public office.
Petitioners aver that by restoring to the print andbroadcast
media industry the right to sell print space or airtime for
campaign or other political purposes, access toprint space and air
time would be given equally to allcandidates. Nevertheless, as
opined by the COMELEC, themeans to gain access to said time and
space would beunequal among all candidates. Hence, there would be
inthe final analysis, inequality.
Furthermore, to tolerate even indirectly over-spendingin print
space or air time for campaign purposes will openthe floodgates to
corruption in public office because awinning candidate who
overspends during the electionperiod must necessarily recover his
campaign expenses byhook or crook. Section 11 of R.A. No. 6646
wouldindirectly constitute a positive and effective measureagainst
corruption in public office.
Petitioners also contend that the challenged provision
isviolative of the peoples right to information particularlyabout
the conduct of public officials including the characterand
qualifications of candidates seeking public office.
I do not adhere to the proposition that the electoratewill not
have the opportunity for quality decision inexpressing its
mandateno sufficient fora to detect anddecide for themselves who,
among the candidates trulydeserve their votes.
6
Aside from Sec. 11(b) of R.A. No. 6646 providing forComelec
space and Comelec time, Sections 9 and 10 of thesame law afford a
candidate several venues by which hecan fully exercise his freedom
of expression, includingfreedom of assembly. The electorate, in
turn, are givenopportunities to know the candidates and be informed
oftheir qualifications and platforms.
As provided in Section 9 of R.A. No. 6646, the
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COMELEC shall encourage non-political, non-partisanprivate or
civic organizations to initiate and hold in everycity and
municipality, public fora at which all registeredcandidates for the
same office may
_______________
6 Comment of the Solicitor General, p. 11.
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28 SUPREME COURT REPORTS ANNOTATED
National Press Club vs. Commission on Elections
simultaneously and personally participate to present,explain,
and/or debate on their campaign platforms andprograms and other
like issues. Section 10, on the otherhand, allows the candidates
the use of the designatedcommon poster areas to post, display and
exhibit electionpropaganda to announce or further their candidacy;
not tomention the right to hold political caucuses,
conferences,meetings, rallies, parades, or other assemblies for
thepurpose of soliciting votes and/or undertaking anycampaign or
propaganda for a candidate; publishing ordistributing campaign
literature or materials designed tosupport the election of any
candidate; and directly orindirectly solicit votes, pledges or
support for a candidate.
7
In short, the law in question (Sec. 11, Rep. Act No. 6646)has
been enacted for a legitimate public purpose and themeans it
employs to achieve such purpose are reasonableand even timely.
Based on all the foregoing considerations, I vote tosustain the
validity and constitutionality of Section 11 ofR.A. No. 6646.
DISSENTING OPINION
GUTIERREZ, JR., J.:
I am saddened by the readiness with which Congress,Comelec, and
the members of this Court are willing to
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sacrifice not only that most precious clause of the Bill
ofRightsfreedom of speech and of the pressbut also theright of
every citizen to be informed in every way possibleabout the
qualifications and programs of those running forpublic office.
Section 11(b) of R.A. No. 6646 will certainly achieve
oneresultkeep the voters ignorant of who the candidates areand what
they stand for.
With elections fast approaching, the surveys show thatalmost
half of the nations voters are undecided as to thePresidency.
Certainly, they do not know who are runningfor the Senate.
The implementation of Section 11(b) will result in
grossinequality. A cabinet member, an incumbent official,
amovie
________________
7 Article X, Section 79, Batas Pambansa Blg. 881.
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National Press Club vs. Commission on Elections
star, a basketball player, or a conspicuous clown enjoys
anunfair advantage over a candidate many times betterqualified but
lesser known.
I am shocked to find out that even the mostknowledgeable people
do not know that Antonio Carpio,former NBI Director; Estelito P.
Mendoza, former SolicitorGeneral and Governor; and Florangel
Rosario Braid,member of the Constitutional Commission
anddistinguished mass communication personality (to nameonly three)
are also running for the Senate. We owe it tothe masses to open all
forms of communication to themduring this limited campaign period.
A candidate to whomcolumnists and radio-television commentators owe
pastfavors or who share their personal biases and convictionswill
get an undue amount of publicity. Those who incur theire of opinion
makers cannot counteract negative reportingby buying his own
newspaper space or airtime for the
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airing of his refutations.Comelec is already overburdened with
the conduct of
elections. Only recently it proved unequal to the task ofkeeping
registration lists clean and had to repeat theexercise in critical
areas. It should now husband itsresources for its real
functioninsuring the integrity of thevoting process and
safeguarding the true results of theelections.
Why Comelec should also supervise the publicitycampaigns of
almost 100,000 candidates running for 17,000national and local
positions is beyond my poor power tocomprehend.
I reject the idea that canned publicity in a so-calledComelec
hour or Comelec corner can replace the fresh,imaginative, and
personal appeal of advertisementsespousing a cause or reaching a
particular audience.
Section 11(b) of R.A. No. 6646 is censorship pure andsimple. It
is particularly reprehensible because it isimposed during the
limited period of the election campaignwhen information is most
needed. Moreover, the merethought that published materials are
supervised by agovernment office is enough to turn the reader off.
Onlyfaithful followers who already know for whom they arevoting
will bother to read the statements of their chosencandidate in the
Comelec corner of the newspapers.
The existing restrictions are more than sufficient.Political
campaigns are allowed only within a limitedperiod. The amount which
a political party or candidatemay spend is restricted.
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30 SUPREME COURT REPORTS ANNOTATED
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Added to the confines of the limited period and
restrictedexpenses, the law now imposes a violation of the
candidatesfreedom of speech and the voters freedom to know.
I concur fully in the views expressed by Mr. JusticeIsagani A.
Cruz in his usual eloquently brilliant style. Weshould not allow
the basic freedom of expression to besacrificed at the altar of
infinitely lesser fears and
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concerns. Under the clear and present danger rule not onlymust
the danger be patently clear and pressingly presentbut the evil
sought to be avoided must be so substantive asto justify a clamp
over ones mouth or, a writing instrumentto be stilled.
In the precedent setting case of Gonzales v. Comelec (27SCRA 835
[1969]), seven (7) Justices (one short of the 2/3majority needed to
invalidate the law) deemed a lessrestrictive statute as
unconstitutional. The four (4) Justiceswho allowed the law to
remain did so only because therewere various safeguards and
provisos. Section 11(b) of R.A.No. 6646 now removes one of those
safeguards.
The then Justice Fred Ruiz Castro stated:
What of the social value and importance of the freedoms
impairedby Section 50-B? The legislation strikes at the most basic
politicalright of the citizens in a republican system, which is the
rightactively to participate in the establishment or administration
ofgovernment. This right finds expression in multiple forms but
itcertainly embraces that right to influence the shape of policy
andlaw directly by the use of ballot. It has been said so many
times itscarcely needs to be said again, that the realization of
thedemocratic ideal of self-government depends upon an informed
andcommitted electorate. This can be accomplished only by allowing
thefullest measure of freedom in the public discussion of
candidatesand the issues behind which they rally; to this end, all
avenues ofpersuasionspeech, press, assembly, organizationmust be
keptalways open. It is in the context of the electoral process that
thesefundamental rights secured by the Constitution assume the
highestsocial importance. (at page 904; Emphasis supplied)
I, therefore, vote for the right to have the widest
possibleexpression of ideas preparatory to the choice of the
nationsleaders. I vote to declare the challenged
legislationunconstitutional.
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CRUZ, J., Dissenting:
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It has become increasingly clear that the grandiosedescription
of this Court as the bulwark of individualliberty is nothing more
than an ironic euphemism. In thedecision it makes today, the
majority has exalted authorityover liberty in another obeisance to
the police state, whichwe so despised during the days of martial
law. I cannotshare in the excuses of the Court because I firmly
believethat the highest function of authority is to insure
liberty.
In sustaining the challenged law, the majority invokesthe
legislative goal, about which there can be no cavil. Myquarrel is
with the way the objective is being pursued for Ifind the method a
most indefensible repression. It doeslittle good, I should think,
to invoke the regulatoryauthority of the Commission on Elections,
for that power isnot a license to violate the Bill of Rights. The
respondent,no less than the legislature that enacted Section 11(b),
issubject to the requirements of the police power which theponencia
seems to disdain.
It is true that a declaration of constitutionality must
bereached only after the most careful deliberation as thechallenged
at is presumed to be valid in deference to thepolitical
departments. But notZand this represents asingular exceptionwhere
the act is claimed to violateindividual liberty, most importantly
the freedom ofexpression. In such a vital and exceptional case, as
in thecase now before us, I respectfully submit that thepresumption
must be reversed in favor of the challenge.
Milton defined freedom of speech as the liberty to know,to
utter, and to argue freely according to conscience, aboveall
liberties. In this context, the definition is understood toembrace
all the other cognate rights involved in thecommunication of ideas
and falling under the morecomprehensive concept of freedom of
expression. Theserights include the equally important freedom of
the press,the right of assembly and petition, the right to
informationon matters of public concern, the freedom of religion
insofaras it affects the right to proselytize and profess ones
faithor lack of it, and the right to form associations as
aninstrument for the ventilation of views bearing on thepublic
welfare.
32
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32 SUPREME COURT REPORTS ANNOTATED
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Wendell Philips offered his own reverence for freedom
ofexpression when he called it at once the instrument andthe
guaranty and the bright consummate flower of allliberty. Like
Milton, he was according it an honored placein the hierarchy of
fundamental liberties recognized in theBill of Rights. And well
they might, for this is truly themost cherished and vital of all
individual liberties in thedemocratic milieu. It is no happenstance
that it is thisfreedom that is first curtailed when the free
society fallsunder a repressive regime, as demonstrated by
thegovernment take-over of the press, radio and televisionwhen
martial law was declared in this country on thattragic day of
September 21, 1972. The reason for thisprecaution is that freedom
of expression is the sharpestand handiest weapon to blunt the edge
of oppression. Noless significantly, it may be wielded by every
citizen in theland, be he peasant or poetand, regrettably,
including thedemagogue and the doltwho has the will and the heart
touse it.
As an individual particle of sovereignty, to use JusticeLaurels
words, every citizen has a right to offer his opinionand
suggestions in the discussion of the problemsconfronting the
community or the nation. This is not only aright but a duty. From
the mass of various and disparateideas proposed, the people can, in
their collective wisdomand after full deliberation, choose what
they may considerthe best remedies to the difficulties they face.
These maynot turn out to be the best solutions, as we have
learnedoften enough from past bitter experience. But the scopealone
of the options, let alone the latitude with which theyare
considered, can insure a far better choice than thatmade by the
heedless dictator in the narrow confine of hismind and the
loneliness of his pinnacle of power.
The citizen can articulate his views, for whatever theymay be
worth, through the many methods by which ideasare communicated from
mind to mind. Thus, he may speakor write or sing or dance, for all
these are forms ofexpression protected by the Constitution. So is
silence,which persuades when speaking fails. Symbolisms can
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also signify meanings without words, like the open hand
offriendship or the clenched fist of defiance or the red flag
ofbelligerence. The individual can convey his message in apoem or a
novel or a tract or in a public speech or through amoving picture
or a stage play. In such diverse ways
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National Press Club vs. Commission on Elections
may he be heard. There is of course no guaranty that hewill be
heeded, for acceptability will depend on the qualityof his thoughts
and of his persona, as well as the mood andmotivation of his
audience. But whatever form he employs,he is entitled to the
protection of the Constitution againstany attempt to muzzle his
thoughts.
There is one especially significant way by which thecitizen can
express his views, and that is through theballot. By the votes he
casts, he is able to participate in theselection of the persons who
shall serve as hisrepresentatives in the various elective offices
in thegovernment, from the highest position of President of
thePhilippines to that of the lowly member of the
SangguniangBarangay. In the exercise of this right, he is free to
choosewhoever appeals to his intelligence (or lack of it),
whetherit be a professional comedian or a pretentious moron or
anunrepentant thief or any other candidate with no knowndistinction
except the presumptuousness to seek electiveoffice. Fortunately,
there are also other candidatesdeserving of the support of the
circumspect and thinkingcitizens who will use their suffrages
conscientiously withonly the public interest as their criterion and
guide.
It is for the purpose of properly informing the electorateof the
credentials and platforms of the candidates that theyare allowed to
campaign during the election period. Suchcampaign includes their
personally visiting the voters inhouse-to-house sorties, calling on
the telephone for theirsupport, sending them letters of appeal,
distributing self-serving leaflets extolling their virtues, giving
away buttonsand stickers and sample ballots and other
campaignmaterials, and holding caucuses, rallies, parades,
public
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meetings and similar gatherings. All these they are allowedto do
in the specified places and at the proper timeprovided only that
they do not exceed the maximum limit ofelection expenses prescribed
by the Election Code at therate of P1.50 for every voter currently
registered in theconstituency where they filed their certificate of
candidacy.
1
It is curious, however, that such allowable campaignactivities
do not include the use of the mass media becauseof the
_______________
1 Sec. 100, Omnibus Election Code.
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prohibition in Section 11(b) of Rep. Act No. 6646. Thecandidate
may employ letters or leaflets or billboards orplacards or posters
or meetings to reach the electorate,incurring for this purpose a
not inconsiderable amount ofhis or his supporters money. But he may
not utilize for thesame purpose periodicals, radio, television or
other forms ofmass communication, even for free. Employment of
thesefacilities is allowed only through the respondentCommission on
Elections, which is directed by the ElectionCode to procure
newspaper space and radio and televisiontime to be distributed
among the thousands of candidatesvying throughout the land for the
thousands of publicoffices to be filled in the coming
elections.
There are some students of the Constitution who believethat
unlike the other liberties guaranteed in the Bill ofRights, the
freedom of speech and of the press is absoluteand not subject to
any kind of regulation whatsoever. Theirreason is the language of
Article III, Section 4, of theConstitution, which provides without
qualification:
No law shall be passed abridging the freedom of speech,
ofexpression or of the press, or the right of the people peaceably
toassemble and petition the government for redress of
grievances.
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This Court does not accept this extreme theory for theliberty we
recognize is not liberty untamed but libertyregulated by law. The
concept of absolute rights must beapproached with utmost caution if
not rejected outright.The better policy is to assume that every
right, includingeven the freedom of expression, must be exercised
inaccordance with law and with due regard for the rights
ofothers.
In fact, laws punishing crimes like slander and libel
andinciting to sedition have never been seriously orsuccessfully
questioned. Contemptuous language is notallowed in judicial
proceedings. Obscenity is proscribed, asso are acts that wound
religious sensibilities. This Courthas regulated the exercise of
the right to hold rallies andmeetings, limiting them to certain
places and hours andunder specified conditions, in the interest of
peace andsecurity, public convenience, and in one case, even
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National Press Club vs. Commission on Elections
to prevent disturbance of the rites in a nearby church.2
Under the Public Assembly Act, a permit from the mayorshall be
necessary for the holding of a public meetingexcept where the
gathering is to be held in a private placeor the campus of a
government-owned or controllededucational institution or a freedom
park.
All this is not meant to suggest that every governmentregulation
is a valid regulation. On the contrary, anyattempt to restrict the
exercise of a right must be tested bythe strict requisites of the
valid exercise of the police poweras established by this Court in a
long line of decisions.These requisites are: 1) the interests of
the public generallyas distinguished from those of a particular
class require theexercise of the police power; and 2) the means
employed arereasonably necessary to the accomplishment of the
purposesought to be achieved and not unduly oppressive
uponindividuals.
3 In simpler terms, the police measure, to be
valid, must have a lawful objective and a lawful method
ofachieving it.
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The lawful objective of Section 11(b) may be readilyconceded.
The announced purpose of the law is to preventdisparity between the
rich and the poor candidates bydenying both of them access to the
mass media and th