EN BANC G.R. No. 102653, March 05, 1992 NATIONAL PRESS CLUB, PETITIONER, VS.

COMMISSION ON ELECTIONS, RESPONDENT.

[G.R. NO. 102925. MARCH 5, 1992]

PHILIPPINE PRESS INSTITUTE REPRESENTED BY ZOILO DEJARESCO, JR, AS ITS PAST

CHAIRMAN AND PRESIDENT, AND FRAULIN A. PEÑASALES AS ITS CORPORATE
SECRETARY, PETITIONERS, VS. COMMISSION ON ELECTIONS, REPRESENTED BY HON.
CHRISTIAN MONSOD, ITS CHAIRMAN; HON. GUILLERMO CARAGUE AND HON. ROSALINA S.
CAJUCOM, RESPONDENTS.

[G.R. NO. 102983. MARCH 5, 1992]

KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI BROAD-CASTING NETWORK;

MOLAVE BROADCASTING NETWORK; MASBATE COMMUNITY BROADCASTING CO., INC.,
RADIO MINDANAO NETWORK, INC., ABS-CBN BROADCASTING CORP., FILIPINAS
BROADCASTING; RADIO PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE
BROADCASTING CORP.; MAGILIW COMMUNITY BROADCASTNG CO., INC.; FOR
THEMSELVES AND IN BEHALF OF THE MASS MEDIA OWNERS AS A CLASS; ANDRE S. KHAN;
ARCADIO M. CARANDANG, JR.; MALOU ESPINOSA MANALASTAS; MIGUEL C. ENRIQUEZ;
JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE E. ESCANER, JR.; RAY G.
PEDROCHE; PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDO RAMIREZ; FOR
THEMSELVES AS VOTERS AND IN BEHALF OF THE PHILIPPINE ELECTORATE AS A CLASS;
ORLANDO S. MERCADO AND ALEJANDRO DE G. RODRIGUEZ; FOR THEMSELVES AS
PROSPECTIVE CANDIDATES AND IN BEHALF OF ALL CANDIDATES IN THE MAY 1992
ELECTION AS A CLASS, PETITIONERS, VS. COMMISSION ON ELECTIONS, RESPONDENT.

DECISION

FELICIANO, J.:

In the three (3) consolidated Petitions before us, the common question raised by petitioners is the
constitutionality of Section 11 (b) of Republic Act No. 6646.

Petitioners in these cases consist of representatives of the mass media which are prevented from
selling or donating space and time for political advertisements; two (2) individuals who are candidates
for office (one for national and the other for provincial office) in the coming May 1992 elections; and
taxpayers and voters who claim that their right to be informed of election issues and of credentials of
the candidates is being curtailed.

It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and
violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the
prohibition imposed by Section 11 (b) amounts to censorship, because it selects and singles out for
suppression and repression with criminal sanctions, only publications of a particular content, namely,
media-based election or political propaganda during the election period of 1992. It is asserted that the
prohibition is in derogation of media's role, function and duty to provide adequate channels of public
information and public opinion relevant to election issues. Further, petitioners contend that Section 11
(b) abridges the freedom of speech of candidates, and that the suppression of media-based
campaign or political propaganda except those appearing in the Comelec space of the newspapers
and on Comelec time of radio and television broadcasts, would bring about a substantial reduction in
the quantity or volume of information concerning candidates and issues in the election thereby
curtailing and limiting the right of voters to information and opinion.

The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of
Republic Act No. 6646, known as the Electoral Reforms Law of 1987:

"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 xx x xx x x

b)for any newspapers, radio broadcasting or television station, 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." (Underscoring supplied)

Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P.
Blg. 881, known as the Omnibus Election Code of the Philippines, which provide respectively as
follows:

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

x x xx x xx x x

Sec. 92. Comelec time. ? The Commission shall procure radio and television time to be
known as 'Comelec Time' which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this purpose,
the franchises 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."
(Underscoring supplied)

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." 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.

No one seriously disputes the legitimacy or the importance of the objective sought to be secured by
Section 11 (b) (of Republic Act No. 6646) in relation to Sections 90 and 92 (of the Omnibus Election
Code). That objective is of special importance and urgency in a country which, like ours, is
characterized by extreme disparity in income distribution between the economic elite and the rest of
society, and by the prevalence of poverty, with the bulk of our population falling below the "poverty
line." It is supremely important, however, to note that that objective is not only a concededly
legitimate one; it has also been given 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 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." (Underscoring supplied)

The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the
enjoyment or utilization of the franchises or permits for the operation of media of communication and
information. The fundamental purpose of such "supervision or regulation" has been spelled out in the
Constitution as the ensuring of "equal opportunity, time, and space, and the right to reply," as well
as uniform and reasonable rates of charges for the use of such media facilities, in connection with
"public information campaigns and forums among candidates."[1]

It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of
speech, freedom of expression and freedom of the press (Article III [4], Constitution) has to be taken
in conjunction with Article IX(C)(4) which may be seen to be a special provision applicable during a
specific limited period -- i.e., "during the election period." It is difficult to overemphasize the special
importance of the rights of freedom of speech and freedom of the press in a democratic polity, in
particular when they relate to the purity and integrity of the electoral process itself, the process by
which the people identify those who shall have governance over them. Thus, it is frequently said that
these rights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free
speech and free press are not unlimited rights for they are not the only important and relevant values
even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself
for public office, without regard to the level of financial resources that one may have at one's
disposal, is clearly an important value. One of the basic state policies given constitutional rank by
Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee
equal access to opportunities for public service and prohibit political dynasties as may be defined by
law."[2]

The technical effect of Article IX(C) (4) of the Constitution may be seen to be that no presumption of
invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the
Comelec for the purpose of securing equal opportunity among candidates for political office, although
such supervision or regulation may result in some limitation of the rights of free speech and free
press. 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 the party asserting its unconstitutionality must
discharge the burden of clearly and convincingly proving that assertion.[3]

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

In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of
the limitations resulting from the particular measure being assayed upon freedom of speech and
freedom of the press are essential considerations. It is important to note that the restrictive impact
upon freedom of speech and freedom of the Press of Section 11 (b) is circumscribed by certain
important limitations.

Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the
operation of Article IX(C)(4) of the Constitution, Section 11 (b) is limited in its applicability in time to
election periods. By its Resolution No. 2328 dated 2 January 1992, the Comelec, acting under
another specific grant of authority by the Constitution (Article IX(C)(9)), has defined the period from
12 January 1992 until 10 June 1992 as the relevant election period.

Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of
Section 11 (b) shows that it purports to apply only to the purchase and sale, including 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 torestrict the reporting by newspapers or radio or
television stations of news or news-worthy events relating to candidates, their qualifications, political
parties and programs of government. Moreover, Section 11 (b) 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, so long at least
as such comments, opinions and beliefs are not in fact advertisements for particular candidates
covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary or
other coverage that, in responsible media, is not paid for by candidates for political office. We read
Section 11 (b) as designed to cover only paid political advertisements of particular candidates.

The above limitation in scope of application of Section 11 (b) -- that it does not restrict either the
reporting of or the expression of belief or opinion or comment upon the qualifications and programs
and activities of any and all candidates for office -- constitutes the critical distinction which must be
made between the instant case and that of Sanidad v. Commission on Elections.[5] In Sanidad, the
Court declared unconstitutional Section 19 of Comelec Resolution No. 2167 which provided as
follows:

"Sec. 19. Prohibition on Columnists, Commentators or Announcers -- During the plebiscite

campaign period, on the day before and on plebiscite day, no mass media columnist,
commentator, announcer or personality shall use his column or radio or television time to
campaign for or against the plebiscite issues."
Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite
mandated by R.A. No. 6766 on the ratification or adoption of the Organic Act for the Cordillera
Autonomous Region. The Court held that Resolution No. 2167 constituted a restriction of the freedom
of expression of petitioner Sanidad, a newspaper columnist of 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 Comelec has also been granted the right to supervise and
regulate the exercise by media practitioners themselvesof their right to expression during
plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite
periods are neither the franchise holders nor the candidates. In fact, there are no candidates
involved in the plebiscite. Therefore Section 19 of Comelec Resolution No. 2167 has no
statutory basis."[6] (Underscoring partly in the original and partly supplied)

There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts
from its prohibition the purchase by or donation to the Comelec of print space or air time, which
space and time Comelec is then affirmatively required to allocate on a fair and equal basis, free of
charge, among the individual candidates for elective public offices in the province or city served by
the newspaper or radio or television station. Some of the petitioners are apparently apprehensive that
Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal basis among the
several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by
unequal or unfair allocations effected by Comelec 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 presumption that official duty will be or is being regularly carried out. It seems
appropriate here to recall what Justice Laurel taught in Angara v. Electoral Commission[7] that the
possibility of abuse is no argument against the concessionof the power or authority involved, for there
is no power or authority in human society that is not susceptible of being abused. Should it be
objected that the Comelec might refrain from procuring "Comelec time" and "Comelec space," much
the same considerations should be borne in mind. As earlier noted, the Comelec is commanded by
statute to buy or "procure" "Comelec time" and "Comelec space" in mass media, and it must be
presumed that Comelec will carry out that statutory command. There is no indication, so far as the
record here would show, that Comelec would not in fact carry out its statutory duty in this connection,
and if it does fail to do so, once again, the candidate or candidates who feel aggrieved have judicial
remedies at their disposal.

The pointsthat may appropriately be underscored are that Section 11 (b) does notcut off the flow of
media reporting, opinion or commentary about candidates, their qualifications and platforms and
promises. Newspaper, radio broadcasting and television stations remain quite free to carry out their
regular and normal information and communication operations. Section 11 (b) does not authorize any
intervention and much less control on the part of Comelec in respect of the content of the normal
operations of media, nor in respect of the content of political advertisements which the individual
candidates are quite free to present within their respective allocated Comelec time and Comelec
space: There is here no "officious functionary of (a) repressive government" dictating what events or
ideas reporters, broadcasters, editors or commentators may talk or write about or display on TV
screens. There is here no censorship, whether disguised or otherwise. What Section 11 (b), viewed
in context, in fact does is to limit paid partisan political advertisements to fora other than modern
mass media, and to "Comelec time" and "Comelec space" in such mass media.

Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the
candidates themselves. The limitation, however, bears a clear and reasonable connection with the
constitutional objective set out in Article IX(C)(4) and Article II (26) of the Constitution. For it is
precisely in the unlimited purchase of print space and radio and television time that the resources of
the financially affluent candidates are likely to make a crucial difference. Here lies the core problem of
equalization of the situations of the candidates0 with deep pockets and the candidates with shallow
or empty pockets that Article IX(C)(4) of the Constitution and Section 11 (b) seek to address. That the
statutory mechanism which Section 11 (b) brings into operation is designed and may be expected to
bring about or promote equal opportunity, and equal time and space, for political candidates to inform
all and sundry about themselves, cannot be gainsaid.

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 of 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 not 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 governmental
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).

It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech
of the candidates themselves may be seen to be not unduly repressive or unreasonable. For, once
again, there is nothing in Section 11 (b) to prevent media reporting of and commentary on
pronouncements, activities, written statements of the candidates themselves. All other fora remain
accessible to candidates, even for political advertisements. The requisites of fairness and equal
oportunity are, after all, designed to benefit the candidates themselves.

Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be
totally disregarded. Realistically, the only limitation upon the free speech of candidates imposed is on
the right of candidates to bombard the helpless electorate with paid advertisements commonly
repeated in the mass media ad nauseam. Frequently, such repetitive political commercials when fed
into the electronic media themselves constitute invasions of the privacy of the general electorate. It
might be supposed that it is easy enough for a person at home simply to flick off his radio or
television set. But it is rarely that simple. For the candidates with deep pockets may purchase radio or
television time in many, if not all, the major stations or channels. Or they may directly or indirectly
own or control the stations or channels themselves. The contemporary reality in the Philippines is
that, in a very real sense, listeners and viewers constitute a "captive audience."[8]

The paid political advertisements introjected into the electronic media and repeated with mind-
deadening frequency, are commonly intended and crafted, not so much to inform and educate as to
condition and manipulate, not so much to provoke rational and objective appraisal of candidates'
qualifications or programs as to appeal to the non-intellective faculties of the captive and passive
audience. The right of the general listening arid viewing public to be free from such intrusions and
their subliminal effects is at least as important as the right of candidates to advertise themselves
through modern electronic media and the right of media enterprises to maximize their revenues from
the marketing of "packaged" candidates.
WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No
pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Bidin, Griño-Aquino, Medialdea, Regalado, Romero, and Nocon,
JJ., concur.
Gutierrez, Jr., Cruz, and Paras, JJ., see dissent.
Padilla, J., concurring opinion.
Davide, Jr., J., separate concurring opinion.
Bellosillo, J., did not take part in the deliberation.

[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 people, was stressed in the discussions in the Constitutional Commissions; Records
of the Constitutional Commission, Vol. 4, pp. 945, 955-6.

[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).

[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
purchaser-donor.

[5]
181 SCRA 529 (1990).

[6]
181 SCRA at 534.

[7]
63 Phil. 139, 177 (1936).

[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 broadcast 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 has -- to ignore advertising in
which he is not interested and 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 Commission's 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 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 leaving the room,
changing the channel, or doing some other such affirmative act. It is difficult to calculate the
subliminal impact of this pervasive propaganda, which may be heard even if not listened to, but it
may reasonably be thought greater than the impact of the written word.' Banzhaf v FCC, 132 US App
DC 11, 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; underscoring supplied)

dissenting OPINION

CRUZ, J.:

It has become increasingly clear that the grandiose description of this Court as the bulwark of
individual liberty is nothing more than an ironic euphemism. In the decision it makes today, the
majority has exalted authority over liberty in another obeisance to the police state, which we so
despised during the days of martial law. I cannot share in the excuses of the Court because I firmly
believe that the highest function of authority is to insure liberty.

In sustaining the challenged law, the majority invokes the legislative goal, about which there can be
no cavil. Myquarrel is with the way the objective is being pursued for I find the method a most
indefensible repression. It does little good, I should think, to invoke the regulatory authority of the
Commission on Elections, for that power is not a license to violate the Bill of Rights. The respondent,
no less than the legislature that enacted Section 11(b), is subject to the requirements of the police
power which the ponencia seems to disdain.

It is true that a declaration of constitutionality must be reached only after the most careful deliberation
as the challenged act is presumed to be valid in deference to the political departments. But not - and
this represents a singular exception - where the act is claimed to violate individual liberty, most
importantly the freedom of expression. In such a vital and exceptional case, as in the case now
before us, I respectfully submit that the presumption 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, above all liberties." In this context, the definition is understood to embrace all the other
cognate rights involved in the communication of ideas and falling under the more comprehensive
concept of freedom of expression. These rights include the equally important freedom of the press,
the right of assembly and petition, the right to information on matters of public concern, the freedom
of religion insofar as it affects the right to proselytize and profess one's faith or lack of it, and the right
to form associations as an instrument for the ventilation of views bearing on the public welfare.

Wendell Philips offered his own reverence for freedom of expression when he called it "at once the
instrument and the guaranty and the bright consummate flower of all liberty." Like Milton, he was
according it an honored place in the hierarchy of fundamental liberties recognized in the Bill of
Rights. And well they might, for this is truly the most cherished and vital of all individual liberties in the
democratic milieu. It is no happenstance that it is this freedom that is first curtailed when the free
society falls under a repressive regime, as demonstrated by the government take-over of the press,
radio and television when martial law was declared in this country on that tragic day of September 21,
1972. The reason for this precaution is that freedom of expression is the sharpest and handiest
weapon to blunt the edge of oppression. No less significantly, it may be wielded by every citizen in
the land, be he peasant or poet and, regrettably, including the demagogue and the dolt - who has the
will and the heart to use it.

As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer
his opinion and suggestions in the discussion of the problems confronting the community or the
nation. This is not only a right but a duty. From the mass of various and disparate ideas proposed,
the people can, in their collective wisdom and after full deliberation, choose what they may consider
the best remedies to the difficulties they face. These may not turn out to be the best solutions, as
we have learned often enough from past bitter experience. But the scope alone of the options, let
alone the latitude with which they are considered, can insure a far better choice than that made by
the heedless dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.

The citizen can articulate his views, for whatever they may be worth, 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." Symbolism can also signify meanings without words, like the open hand of friendship
or the clenched fist of defiance or the red flag of belligerence. 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 of course no guaranty that he will be heeded, for
acceptability will depend on the quality of his thoughts and of his persona, as well as the mood and
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.

There is one especially significant way by which the citizen can express his views, and that is through
the ballot. By the votes he casts, he is able to participate in the selection of the persons who shall
serve as his representatives in the various elective offices in the government, from the highest
position of President of the Philippines to that of the lowly member of the Sangguniang Barangay. In
the exercise of this right, he is free to choose whoever appeals to his intelligence (or lack of it),
whether it be a professional comedian or a pretentious moron or an unrepentant thief or any other
candidate with no known distinction except the presumptuousness to seek elective office.
Fortunately, there are also other candidates deserving of the support of the circumspect and thinking
citizens who will use their suffrages conscientiously with only the public interest as their criterion and
guide.

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. Such campaign includes
their personally visiting the voters in house-to-house sorties, calling on the telephone for their
support, sending them letters of appeal, distributing self-serving leaflets extolling their virtues, giving
away buttons and stickers and sample ballots and other campaign materials, and holding caucuses,
rallies, parades, public meetings and similar gatherings. All these they are allowed to do in the
specified places and at the proper time provided only that they do not exceed the maximum limit of
election expenses prescribed by the Election Code at the rate of P1.50 for every voter currently
registered in the constituency where they filed their certificate of candidacy.[1]

It is curious, however, that such allowable campaign activities do not include the use of the mass
media because of the prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ
letters or leaflets or billboards or placards or posters or meetings to reach the electorate, incurring for
this purpose a not inconsiderable amount of his or his supporters' money. But he may not utilize for
the same purpose periodicals, radio, television or other forms of mass communication, even for free.
Employment of these facilities is allowed only through the respondent Commission on Elections,
which is directed by the Election Code to procure newspaper space and radio and television time to
be distributed among the thousands of candidates vying throughout the land for the thousands
of public offices to be filled in the coming elections.

There are some students of the Constitution who believe that unlike the other liberties guaranteed in
the Bill of Rights, the freedom of speech and of the press is absolute and not subject to any kind of
regulation whatsoever. Their reason is the language of Article III, Section 4, of the Constitution, which
provides without qualification:

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.

This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but
liberty regulated by law. The concept of absolute rights must be approached with utmost caution if not
rejected outright. The better policy is to assume that every right, including even the freedom of
expression, must be exercised in accordance with law and with due regard for the rights of others.

In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously
or successfully questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity
is proscribed, as so are acts that wound religious sensibilities. This Court has regulated the exercise
of the right to hold rallies and meetings, limiting them to certain places and hours and under specified
conditions, in the interest of peace and security, public convenience, and it one case, even to prevent
disturbance of the rites in a nearby church.[2] Under the Public Assembly Act, a permit from the mayor
shall be necessary for the holding of a public meeting except where the gathering is to be held in a
private place or the campus of a government-owned or controlled educational institution or a freedom
park.

All this is not meant to suggest that every government regulation is a valid regulation. On the
contrary, any attempt to restrict the exercise of a right must be tested by the strict requisites of the
valid exercise of the police power as established by this Court in a long line of decisions. These
requisites are: 1) the interests of the public generally as distinguished from those of a particular class
require the exercise of the police power; and 2) the means employed are reasonably necessary to
the accomplishment of the purpose sought to be achieved and not unduly oppressive upon
individuals.[3] In simpler terms, the police measure, to be valid, must have a lawful objective and a
lawful method of achieving it.

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 an undue advantage over the latter. There
is no question that this is a laudable 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.

But in constitutional law, the end does not justify the means. 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.

The 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. Thus, the rich candidate may hold as many rallies
and meetings as he may desire or can afford, using for the purpose the funds he would have spent
for the prohibited mass media time and space. The number of these rallies and meetings, which also
require tremendous expense, cannot be matched by the poor candidate, but the advantage of the
rich candidate in this case is not similarly prohibited. By the same token, the rich candidate may visit
more houses, send more letters, make more telephone appeals, distribute more campaign materials,
incurring for all these more expenses than the poor candidate can afford. But these advantages are
allowed by the law because they do not involve the use of mass media space and time.

And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the
same amount is raised for the same purpose by 250 supporters of the poor candidate contributing
P100 each? Both transactions would be prohibited under the law although the rich candidate clearly
has in this case no advantage over his adversary.

And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or
a radio commentator who is apparently expressing his own opinion without financial consideration or
inducement? This is not prohibited by Section 11(b) simply because the endorsement does not
appear to have been purchased by the candidate or given to him for free.

The proposed distribution of COMELEC time and space is hardly workable, considering the
tremendous number of candidates running all over the country for the offices of President of the
Philippines, Vice-President, senators, representatives, provincial governors, vice-governors,
provincial board members, city mayors, vice-mayors and councilors, and municipal mayors, vice-
mayors and councilors. Allocation of equal time and space among the candidates would involve
administrative work of unmanageable proportions, and the possibility as well of unequal distribution,
whether deliberate or unintentional, that might create more serious problems than the problem at
hand.

It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the
legislature to resolve and its resolution may not be reviewed by the courts of justice. In the case of
the police power, however, it is required that there be a plausible nexus between the method
employed and the purpose sought to be achieved, and determination of this link involves a judicial
inquiry into the reasonableness of the challenged measure. It is true, as remarked by Justice Holmes,
that a law has done all it can if it has done all it should, but this is on the assumption that what the law
has done was valid to begin with. The trouble with the challenged law is that it has exceededwhat it
should have done, thereby becoming both inefficacious and arbitrary. As such, it must be slain.
But the most important objection to Section 11(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 the citizen that he may speak only if allowed to do so, and no more and no less
than what he is permitted to say on pain of punishment should he be so rash as to disobey. In his
"Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility of finding a man base
enough to accept the office of censor and at the same time good enough to perform its duties. Yet
a pretender to that meddler is in our midst today, smugly brandishing the threat of this miserable law.

One could perhaps concede some permissible instances of censorship, as where private mail is
screened during wartime to prevent deliberate or unwitting disclosure of sensitive or classified
matters that might prejudice the national security or where, to take a famous example, a person is
prohibited from shouting "Fire!" in a crowded theater. But these exceptions merely make and bolster
the rule that there should be no prior restraint upon a person's right to express his ideas on any
subject of public interest. The rule applies whether the censorship be in the form of outright
prohibition, as in the cases before us, or in more subtle forms like the imposition of a tax upon
periodicals exceeding a prescribed maximum number of copies per issue[4] or allowing the circulation
of books only if they are judged to be fit for minors, thus reducing the reading tastes of adults to the
level of juvenile morality.[5]

I remind the Court of the doctrine announced in Bantam Books v. Sullivan[6] that "any system of prior
restraints of expression comes to this Court bearing a heavy presumption against its validity." That
presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision
appears quite clearly to be invalid on its 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 convenient instruments for the molding of public opinion. And it does not
matter that the use of these facilities may involve financial transactions, for the element of the
commercial does not remove them from the protection of the Constitution.[7]

The law is no less oppressive on the candidates themselves who want and have the right to address
the greatest number of voters through the modern facilities of the press, radio and television. Equally
injured are the ordinary citizens, who are also entitled to be informed, through these mass media, of
the qualifications and platforms of the various candidates aspiring for public office, that they may be
guided in the choice they must make when they cast their ballots.[8]

I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of
material persuasions on the choice of our elective officials. It is truly alarming that elections in a
growing number of cases have become no more than auction sales, where the public office is
awarded to the highest bidder as if it were an article of commerce. The offer of cash in exchange for
his vote would be virtually irresistible to a person mired in poverty and in the throes of the elemental
struggle for survival. That there are millions of such persons can only compound this terrible situation.
But what makes it especially revolting is the way these helpless persons are manipulated and
imposed upon and tantalized to surrender their birthright for a mess of pottage. The unscrupulous
candidates who do not hesitate to use their wealth to buy themselves into elective office - these are
the real saboteurs of democracy. These are the scoundrels who would stain the pristine ballot in their
cynical scheme to usurp public office by falsifying the will of the people. Section 11(b) aims to
minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the
Commission on Elections relies heavily on Badoy v. Commission on Elections[9] to sustain the
exercise of its authority to regulate and supervise the mass media during the election period as
conferred upon it by what is now Section 4 of Article IX in the present Constitution. However, that
case is not in point for what was upheld there was Section 12(f) of Rep. Act No. 6132 providing as
follows:

The Commission on Elections shall endeavor to obtain free space from newspapers,
magazines and periodicals which shall be known as Comelec space, and shall allocate this
space equally and impartially among all candidates within the areas in which the newspapers
are circulated. Outside of said Comelec space, it shall be unlawful to print or publish, or cause
to be printed or published, any advertisement, paid comment or paid article in furtherance of
or in opposition to the candidacy of any person for delegate, or mentioning the name of any
candidate and the fact of his candidacy, unless all the names of all other candidates in the
district in which the candidate is running are also mentioned with equal prominence.

The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee
and Barredo), declared:

Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions
of R.A. No. 6132 designed to maximize, if not approximate, equality of chances among the
various candidates in the same district, the said restriction on the freedom of expression
appears too insignificant to create any appreciable dent on the individual's liberty of
expression.

What is challenged in the case at bar is not that law but Section 11(b), which does not merely require
mention of the candidate's rivals in the paid advertisement or commercial, an innocuous enough
requirement, to be sure. What Section 11(b) does is prohibit the advertisement or commercial itself in
what is unmistakably an act of censorship that finds no justification in the circumstances here
presented. Surely, that blanket and absolute prohibition to use the mass media as a vehicle for the
articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to create
any appreciable dent on the individual's liberty of expression."

What is in point is Sanidad v. Commission on Elections,[10] where this Court, through Mr. Justice
Medialdea, unanimously declared unconstitutional a regulation of the Commission on Elections
providing as follows:

Section 19. Prohibition on columnists, commentators or announcers. - During the plebiscite

campaign period, on the day before and on plebiscite day, no mass media columnist,
commentator, announcer or personality shall use his column or radio or television time to
campaign for or against the plebiscite issues.

On the argument that the said persons could still express their views through the air time and
newspaper space to be allocated by the respondent, the Court declared:

Anent respondent Comelec's argument that Section 19 of Comelec resolution 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 still a restriction on his choice of the forum where he
may express his view. 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. (Emphasis supplied).

This decision was promulgated without a single dissent, even from the incumbent members then who
are now sustaining Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there
is not a single word in this decision upholding the prohibition in question.

The respondent also paints a distressing picture of the current political scene and expresses its
despair over the plight of the poor candidate thus:

Respondent Commission invites appreciation of the realities of present-day political

campaigns. In today's election competitions the success of one's candidacy rests to a great
extent on the candidate's ability to match the financial and material resources of the other.
Where a candidate is given limitless opportunity to take his campaign to areas of persuasion
through the media, what is left of a winning chance for a poor, if deserving, candidate? But for
the regulatory power of Sec. 11(b) of Republic Act No. 6646, a wealthy candidate could block
off an opponent of lesser means from the public view by buying all print space in newspapers
and air time in radio and television.

I am certain the Court shares the apprehensions of the sober elements of our society over the acute
disadvantage of the poor candidate vis-a-visa wealthy opponent determined to win at all costs (which
he can afford). However, for all its anxiety to solve this disturbingly widespread difficulty, it is
inhibited, as all of us must be, by the mandate of the Constitution to give untrammeled rein to the
dissemination and exchange of ideas concerning the elections.

The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich
candidate would or could buy "all print space in newspapers and air time in radio and television" to
"block off" his opponents. Let us not be carried away by hyperbolic speculations. After all, as the
respondent itself points out, it is empowered by the Constitution to supervise or regulate the
operations of the mass media in connection with election matters, and we may expect that it will use
this power to prevent the monopoly it fears, which conceivably will consume all the funds the
candidate is allowed to spend for his campaign. It should be pointed out that the rich candidate
violates no law as long as he does not exceed the maximum amount prescribed by the Election Code
for campaign expenses. The mere fact that the poor candidate can spend only a small fraction of that
amount does not prevent the rich candidate from spending all of it if he is so minded. This may be a
heartless way of putting it, but that is in fact how the law should be interpreted. The Election Code
fixes a maximum limit for all candidates, rich or poor alike; it does not say that the rich candidate shall
spend only the same amount as the poor candidate can afford.

I realize only too well that the ideas that may be conveyed by the prohibited media advertisements
will mostly be exaggerations or distortions or plain poppycock and may intrude upon our leisure hours
if not also offend our intelligence and exhaust our patience. We may indeed be opening a Pandora's
box. But these are unavoidable in the free society. As part of the larger picture, these impositions are
only minor irritations that, placed in proper perspective, should not justify the withdrawal of the great
and inalienable liberty that is the bedrock of this Republic. It is best to remember in this regard that
freedom of expression exists not only for the thought that agrees with us, to paraphrase Justice
Holmes, but also for the thought that we abhor.

I submit that all the channels of communication should be kept open to insure the widest
dissemination of information bearing on the forthcoming elections. An uninformed electorate is not
likely to be circumspect in the choice of the officials who will represent them in the councils of
government. That they may exercise their suffrages wisely, it is important that they 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 mediocrities who, by an incredible
aberration of ego, are relying on their money, or their tinsel popularity, or their private armies, to give
them the plume 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.

[1]
Sec. 100, Omnibus Election Code.

[2]
Navarro v. Villegas, 31 SCRA 731; Reyes v. Bagatsing, 125 SCRA 533; Tañada v. Bagatsing, G.R.
No. 68273, August 18, 1984; Aquino v. Bagatsing, G.R. No. 68318, August 18, 1984; De la Cruz v.
Ela, 99 Phil. 346.

[3]
U.S. v. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Case v. Board of Health, 24 Phil.
250; Taxicab Operators of Metro Manila v. Board of Transportation, 119 SCRA 596; Bautista v.
Juinio, 127 SCRA 329; Lozano v. Martinez, 146 SCRA 323; Lorenzo v. Director of Health, 50 Phil.
595; People v. Chan, 65 Phil. 611; Department of Education v. San Diego, 180 SCRA 533; Ynot v.
IAC, 148 SCRA 659.

[4]
Grosjean v. American Press Co., 297 U.S. 233.

[5]
Butler v. Michigan, 352 U.S. 380.

[6]
372 U.S. 58.

[7]
Valentine v. Chrestensen, 316 U.S. 52; New York Times Co. v. Sullivan, 376 U.S. 254; Bigelow v.
Virginia, 421 U.S. 809; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc.,
425 U.S. 748.

[8]
Coleman v. MacLennon, 78 Kan. 11, cited in New York Times Co. v. Sullivan, 376 U.S. 254.

[9]
35 SCRA 285.

[10]
181 SCRA 529.

CONCURRING OPINION

DAVIDE, JR., J.:

I fully concur with the majority opinion. I wish, however, to express my thoughts on some material
points.

The constitutional issue raised in these cases must be decided in the light of the provisions of our
own Constitution and not on orthodox principles or classical definitions of certain rights which have, in
the course of time and as a result of the interplay of societal forces requiring the balancing of
interests and values, been unchained from their absolutist moorings.

It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights
guarantees, is not an absolute right.

Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the
right or privilege of free speech and publication, guaranteed by the Constitutions of the United States
and of the several states, has its limitations; the right is not absolute at all times and under all
circumstances, although limitations are recognized only in exceptional cases. 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."[1]

The foregoing rule proceeds from the principle that every right or freedom carries with it the
correlative duty to exercise it responsibly and with due regard for the rights and freedoms of others.
In short, freedom is not freedom from responsibility, but withresponsibility.

I respectfully submit that there can be no higher form of limitation to a right than what the Constitution
itself authorizes. On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of
speech or expression and of the press vis-a-vis the electoral process, the present Constitution lays
down certain principles authorizing allowable restraints thereon. I refer to the following provisions of
the 1987 Constitution, to wit:

(1) Section 26 of Article II. (Declaration of Principles and other Policies) which reads:

"The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law" (underscoring 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."
(underscoring supplied)

(3) Section 4 of Article IX-C which provides:

"The Commission may, during the election period, supervise or regulatethe enjoyment or utilization of
all franchises or permits for the operation of transportation and other public utilities, media
ofcommunication 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. Suchsupervision 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." (underscoring supplied)

There can be no doubt that the first two (2) provisions contemplate measures that would bridge the
gap between the rich and the poor in our society. In the past, the equilibrium sought to be achieved
was only in the economic and social fields. Thus, before the advent of the 1987 Constitution, social
justice was defined as:
"Social justice is 'neither communism, nor despotism, nor atomism, nor anarchy,' but the
humanization of laws and the equalization of social and economic forces by the State so that justice
in its rational and objectively secular conception may at least be approximated. Social justice means
the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the existenceof all governments on the
time-honored principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and evenly
extended to all groups as a combined force in our social and economic life, consistent with the
fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about the greatest good to the greatest number.' "[2]

Aware of the lamentable fact that 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.

Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focussing
strictly on the legitimate aspect of the electoral struggle, propaganda, through the various forms of
media, provides the most sophisticated and effective means of reaching the electorate and
convincing voters to vote for a particular candidate. It is in this area, particularly in the use of
television, radio and newspaper, that a poor candidate will not be able to compete with his opulent
opponents who have all the resources to buy prime television and radio time and full pages of leading
newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely
relax in their homes, offices or hotel suites, can reach every nook and cranny of their municipality,
city, province, district or even the entire Philippines and be seen or heard at any time of the day and
night. During the contracted hours, their paid hacks can concentrate on dishonoring the poor and
hapless opponent by hurling innuendoes of defects or vice. With newspaper advertisements, the
wealthy candidates can reach thousands of readers daily. A worse scenario obtains where the rich
candidates themselves fully or substantially own or operate a television or radio station, or publish
newspapers. On the other hand, to a poor candidate, the campaign period would sadly prove to be
insufficient for him to campaign in every barangay, even if he is running for a municipal position.
Thus, not only would he already be at a disadvantage insofar as visibility and presentation of his
issues or program of government are concerned, he would have no opportunity to rebut whatever lies
his opponents may spread nor the chance to clear himself of false accusations.

Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress
passed a measure, R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987,[3]
introducing additional reforms to the electoral system which, inter alia, not only seeks to enhance the
purity of the electoral process, but also aspires to ensure even just an approximation of equality
among all candidates in their use of media for propaganda purposes. The latter is best evidenced by
the provision challenged in this case, Section 11(b), which reads:

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

xxx

(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 asprovided 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, Article IX-C of the Constitution, is a reasonable
regulation enacted to accomplish the desired objectives and purposes earlier mentioned. It neither
constitutes proscribed abridgment of the freedom of expression nor prohibits free speech; it merely
provides the rules as to the manner, time and place for its exercise during a very limited period. It
makes reference to Sections 90 and 92 of Batas Pambansa Blg. 881 on "COMELEC time" and
"COMELEC space." Said sections read in full as follows:

"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)

xxx

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)"

Obviously then, the airing and printing of a candidate's political advertisement can be done -- and, is
even encouraged to be done -- during the "COMELEC time" and within the "COMELEC space." This
authority of the COMELEC is no longer purely statutory. It is now constitutional pursuant to the clear
mandate of Section 4 of Article IX-C, which is quoted above. This constitutional grant removes
whatever doubt one may have on the split verdict of this Court in Badoy vs. Ferrer, et al..[4]
Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:

"The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the areas in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless
all the names of all other candidates in the district in which the candidate is running are also
mentioned with equal prominence."

this Court ruled:

"Against the background of such facilities accorded by the law for all candidates, rich and poor alike,
and the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration
and the equality of chances among the candidates, the restriction on the freedom of expression of the
candidate or any other individual prescribed in par. F of Sec. 12 is so narrow as not to affect the
substance and vitality of hisfreedom of expression itself.

xxx

Hence, consistent with our opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs.
Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F of Sec. 12, is only one of the many devices employed by the
law to prevent a clear and present danger of the perversion or prostitution of the electoral apparatus
and of the denial of the equal protection of the laws.

The fears and apprehensions of petitioner concerning his liberty of expression in these two cases,
applying the less stringent balancing-of-interests criterion, are far outweighed by the all important
substantive interests of the State to preserve the purity of the ballot and to render more meaningful
and real the guarantee of the equal protection of the laws."

In the fairly recent case of Sanidad vs. Commission on Elections,[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 that what was granted to the Comelec
was the power to supervise and regulate the use and enjoyment of franchises, permits or other
grants issued for the operation of transportation or other public utilities, media of communication or
information to the end that equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates are
ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder
may favor or give any undue advantage to a candidate in terms of advertising space or radio or
television time. This is also the reason why a columnist, commentator, announcer or personality, who
is a candidate for any elective office is required to take a leave of absence from his work during the
campaign period (2nd par. Section 11(b) R.A. 6646).' It cannot be gainsaid that a columnist or
commentator who is also a candidate would be more exposed to the voters to the prejudice of other
candidates unless required to take a leave of absence.

However, neither Article IX-C of the Constitution nor Section 11(b), 2nd par. of R.A. 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 plebiscite periods.
Media practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite.
Therefore, Section 19 of Comelec Resolution 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 of election propaganda was assailed, We ruled therein that the prohibition
is a valid exercise of the police power of the state to prevent the perversion and prostitution of the
electoral apparatus and of the denial of equal protection of the laws.' The evil sought to be prevented
in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes
are taken in an area on some special political matter unlike in an election where votes are cast in
favor of specific persons for some office. In other words, the electorate is asked to vote for or against
issues, not candidates in a plebiscite."

Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged
provision, the doubt must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs.
Executive Secretary, et al.:[6]

"x x x it is in accordance with the settled doctrine that between two possible constructions, one
avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be
preferred. That which will save, not that which will destroy, commends itself for acceptance. After all,
the basic presumption all these years is one of validity. The onerous task of proving otherwise is on
the party seeking to nullify a statute. It must be proved by clear and convincing evidence that there is
an infringement of a constitutional provision, save in those cases where the challenged act is void on
its face. Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well
founded, does not suffice. Justice Malcolm's aphorism isapropos: 'To doubt is to sustain.'"[7]

The reason for this is that an act of the legislature approved by the executive is presumed to be
within constitutional bounds. The responsibility of upholding the Constitution rests not only on the
courts, but also on the legislature and the executive as well.

For the Court to strike out their acts as unconstitutional, nothing less than clear and convincing
evidence 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.

[1]
16A Am. Jur. 2d, 341-342.

[2]
Calalang vs. Williams, et al., 70 Phil. 726.

[3]
Approved on 5 January 1988.

[4]
35 SCRA 285.

[5]
181 SCRA 529 (29 January 1990).

[6]
128 SCRA 6.

[7]
In Yu Cong Eng vs. Trinidad, 47 Phil. 385.

DISSENTING OPINION
GUTIERREZ, JR., J.:

I am saddened by the readiness with which Congress, Comelec, and the members of this Court are
willing to sacrifice not only that most precious clause of the Bill of Rights -- freedom of speech and of
the press -- but also the right of every citizen to be informed in every way possible about the
qualifications and programs of those running for public office.

Section 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.

With elections fast approaching, the surveys show that almost half of the nation's voters are
undecided as to the Presidency. Certainly, they do not know who are running for the Senate.

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 unfair advantage over a
candidate many times better qualified but lesser known.

I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio,
former NBI Director; Estelito P. Mendoza, former Solicitor General and Governor; and Florangel
Rosario Braid, member of the Constitutional Commission and distinguished mass communication
personality (to name only three) are also running for the Senate. 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 newspaper space or airtime for the airing of
his refutations.

Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to
the task of keeping registration lists clean and had to repeat the exercise in critical areas. It should
now husband its resources for its real function - insuring the integrity of the voting process and
safeguarding the true results of the elections.

Why Comelec should also supervise the publicity campaigns of almost 100,000 candidates running
for 17,000 national and local positions is beyond my poor power to comprehend.

I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the
fresh, imaginative, and personal appeal of advertisements espousing a cause or reaching a particular
audience.

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. Moreover, the mere thought that published materials are supervised by a government office
is enough to turn the reader off. Only faithful followers who already know for whom they are voting
will bother to read the statements of their chosen candidates in the Comelec corner of the
newspapers.

The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited
period. The amount which a political party or candidate may spend is restricted. Added to the
confines of the limited period and restricted expenses, the law now imposes a violation of the
candidates' freedom of speech and the voters' freedom to know.

I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant
style. We should not allow the basic freedom of expression to be sacrificed at the altar of infinitely
lesser fears and concerns. Under the clear and present danger rule 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.

In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one
short of the 2/3 majority needed to invalidate the law) deemed a less restrictive statute as
unconstitutional. The four (4) Justices who allowed the law to remain did so only because there were
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 impaired by Section 50-B? The
legislation strikes at the most basic political right of the citizens in a republican system, which
is the right actively to participate in the establishment or administration of government. This
right finds expression in multiple forms but it certainly embraces that right to influence the
shape of policy and law directly by the use of ballot. It has been said so many times it
scarcely needs to be said again, that the realization of the democratic ideal of self-
government depends upon an informed and committed electorate. This can be accomplished
only by allowing the fullest measure of freedom in the public discussion of candidates and the
issues behind which they rally; to this end, all avenues ofpersuasion -- speech, press,
assembly, organization -- must be kept always open. It is in the context of the electoral
process that these fundamental rights secured by the Constitution assume the highest social
importance." (at Page 904; Emphasis supplied)

I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the
choice of the nation's leaders. I vote to declare the challenged legislation unconstitutional.

CONCURRING OPINION

PADILLA, J.:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.

Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987",
challenged in these petitions, states that:

"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
 "(b) For any newspaper, radio broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the Commission as provided under
Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator,
announcement (sic) 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."

Petitioners contend that the provision is void because it is violative of the freedoms of the press,
speech and expression as guaranteed by Article III, Section 4 of the Constitution.

But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate
exercise of its police power.

"Theconcept of police power is well?established in this jurisdiction. It has been defined as the
state authority to enact legislation that may interfere with personal liberty or property in order
to promote the general welfare.' As defined, it consists of (1) an imposition of restraint upon
liberty or property, (2) in order to foster the common good.

xxx

"It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is 'rooted in
the conception that men in organizing the state and imposing upon its government limitations
to safeguard constitutional rights did not intend thereby to enable an individual citizen or a
group of citizens to obstruct unreasonably the enactment of such salutary measures
calculated to ensure communal peace, safety, good order, and welfare.' Significantly, the Bill
of rights itself does not purport to be an absolute guaranty of individual rights and liberties.
'Even liberty itself, the greatest of all rights, is not unrestricted license to act according to
one's will.' It is subject to the far more overriding demands and requirements of the greater
number."[1]

Police power rests upon public necessity and upon the right of the State of the public to self-
protection. For this reason, it is co-extensive with the necessities of the case and the safeguards of
public interest.[2]

In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal
access to opportunities for public service.[3] Opportunity to hold a public office for public service,
particularly elective public offices must be equally accessible to qualified and deserving citizens.
Corollary to this, the legislature also recognizes the power of the Commission on Elections
(COMELEC) to supervise or regulate the enjoyment or utilization of all franchises or permits for the
operation of media of communication or information granted by the government or any subdivision,
agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefore, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful and credible elections."[4]

InPablito 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 a franchise holder may favor or give
any undue advantage to a candidate in terms of advertising space or radio or television time.

In line with the objective of providing equal opportunity to all candidates, the questioned provision is
intended to act as an equalizer between the rich and poor candidates. As it is, the moneyed
candidate has the funds to engage in a myriad of campaign activities. To allow the rich candidates to
have free reign over the use of media for their campaign would result in an unfair advantage over the
poor candidates who have no funds or have meager funds to secure print space and air time, and
yet, they may be equally 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 Section 12(F)
of R.A. No. 6132 valid and constitutional, recognizing that the purpose of the limitation, on the
freedom of the candidate or his sympathizer to spend his own money for his candidacy alone and not
for the furtherance of the candidacy of his opponents, is to give the poor candidates a fighting chance
in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize, if not approximate,
equality of chances among the various candidates for elective public office.

Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space
or air time for campaign or other political purposes, access to print space and air time would be given
equally to all candidates. Nevertheless, as opined by the COMELEC, the means to gain access to
said time and space would be unequal among all candidates. Hence, there would be in the final
analysis, inequality.

Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign
purposes will open the floodgates to corruption in public office because a winning candidate who
overspends during the election period must necessarily recover his campaign expenses by "hook or
crook". Section 11 of R.A. No. 6646 would indirectly constitute a positive and effective measure
against corruption in public office.

Petitioners also contend that the challenged provision is "violative of the people's right to information
particularly about the conduct of public officials including the character and qualifications of
candidates seeking public office."

I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision
in expressing its mandate - no sufficient fora to detect and decide for themselves who, among the
candidates truly deserve their votes."[6]

Aside from Sec. 11(b) of R.A. No. 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. The electorate, in turn, are given opportunities to know
the candidates and be informed of their qualifications and platforms.

As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan
private or civic organizations to initiate and hold in every city and municipality, public for a at which all
registered candidates for the same office may simultaneously and personally participate to present,
explain, and/or debate on their campaign platforms and programs and other like issues. Section 10,
on the other hand, allows the candidates the use of the designated common poster areas to post,
display and exhibit election propaganda to announce or further their candidacy; not to mention the
right to hold political caucuses, conferences, meetings, rallies, parades, or other assemblies for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for a candidate;
publishing or distributing campaign literature or materials designed to support the election of any
candidate; and directly or indirectly 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 the means it employs to achieve such purpose are reasonable and even timely.
Based on all the foregoing considerations, I vote to sustain the validity and constitutionality of Section
II of R.A. No. 6646.

[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. Peña, G.R. NO. 77663, April 12, 1988, 159 SCRA 556

[3]

[4]
Art. IX-C, Section 4, 1987 Constitution.

[5]
G.R. NO. 90878, January 29, 1990, 181 SCRA 529.

[6]
Comment of the Solicitor General, p. 11.

[7]
Article X, Section 79, Batas Pambansa Blg. 881.

DISSENTING OPINION

PARAS, J.:

In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like
efficiency, rendered a decision which in the interest of accuracy and candidness, I would like to turn
the serious attack on our freedom of expression. It is sad but I have no choice except to say that I
dissent.

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 for a (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 appear in campaigns other than through media. It is alleged also that the
candidate with money can purchase for himself several full page advertisements, making his poor
opponents really poor in more ways than one. This is not realistic for the poor opponents may, far
certain reasons be given or favored with advertisements free of charge, and money will not be
needed in this case. And yet under the statute in question, even free or gratuitous advertisements in
print, in radio or in television are included in the prohibition. And then again, it is contended by the
majority that a poor candidate can still make use of media by consenting to interviews and news
reports about his campaign, which interviews and reports are, according to the majority still allowable.
But then these interviews and news reports are still subtle advertisements and they can be had if a
candidate deliberately looks for media practitioners to interview him or to write about him. If the
majority is to be consistent, these interviews and news reports should also be disallowed. A case in
 point is the senatorial candidate who was interviewed on television last Tuesday (March 3, 1992).
Portions of the interview follow:

"Q.In 19___, were you not the Secretary of_____________?

A. Yes, I was.

"Q. When you were Secretary, did you not accomplish the following?

(Interviewer then enumerated various accomplishments.)

A.Yes, I did."

There can be no doubt that this interview is disguised propaganda, and yet, if we follow the
Majority opinion, this is allowable. Is this not illogical - that is, if the ban stays?

And then again, if wewere to consider the ban as constitutional, the "unknown" or "lesser known"
candidates would be at a distinct disadvantage. They will have to hold numerous rallies (spending
oodles and oodlesof money). And only those who had previously received public exposure by dint
of government service or by prominence in the movies, in music, in sports, etc. will be the ones "r
ecalled" by the voters. This will indeed be unfortunate for our country.

It is true that freedom of speech and freedom of the press are not absolute, and that they have their
own limitations. But I do not see how these limitations can make the disputed prohibition valid and
constitutional.

I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and
eminently unconstitutional.

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