EN BANC
G.R. No. 208062, April 07, 2015
SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners, v. COMMISSION ON ELECTIONS, Respondent.
D E C I S I O N
LEONEN, J.:
This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation to Rule 65, of the 1997 Rules of Civil Procedure praying that respondent Commission on Elections' Resolution No. 96742 dated April 23, 2013 be nullified and set aside and that the Commission on Elections be permanently enjoined from enforcing the same Resolution, as well as prosecuting Social Weather Stations, Inc. and Pulse Asia, Inc. for violating it or otherwise compelling compliance with it.3
Commission on Elections' (COMELEC) Resolution No. 9674 directed Social Weather Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse Asia), as well as "other survey firms of similar circumstance"4 to submit to COMELEC the names of all commissioners and payors of all surveys published from February 12, 2013 to April 23, 2013, including those of their "subscribers."5
SWS and Pulse Asia are social research and public polling firms. Among their activities is the conduct of pre-election surveys.6
As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS conducted a pre-election survey on voters' preferences for senatorial candidates. Thereafter, it published its findings.7 The following question was asked in the survey:
Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto bilang mga SENADOR ng PILIPINAS? Narito ang listahan ng mga kandidato. Paki-shade o itiman po ang naaangkop na oval katabi ng pangalan hg mga taong pinakamalamang ninyong iboboto. Maaari po kayong pumili ng hanggang labindalawang (12) kandidato.(LIST OF CANDIDATES OMITTED)
If the elections were held today, whom would you most probably vote for as SENATORS of the PHILIPPINES? Here is a list of candidates. Please shade the oval beside the name of the persons you would most likely vote for. You may choose up to twelve (12) candidates.
(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)
WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby RESOLVES, to DIRECT the SWS, Pulse Asia and other survey firms of similar circumstance to submit within three (3) days from receipt of this Resolution the names of all commissioners and payors of surveys published from February 12, 2013 to the date of the promulgation of this Resolution for copying and verification by the Commission. The submission shall include the names of all "subscribers" of those published surveys. Such information/data shall be for the exclusive and confidential use of the Commission;
RESOLVED FURTHER, that all surveys published subsequent to the promulgation of this Resolution must be accompanied by all the information required in Republic Act no. 9006, including the names of commissioners, payors and subscribers.
This resolution shall take effect immediately after publication.
A violation of these rules shall constitu[t]e an election offense as provided in Republic Act no. 9006, or the Fair Election Act.18 (Emphasis in the original)
a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint for an election offense; and
b) refused to specify the election offense under which they were being prosecuted.
5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey must likewise publish the following information:chanroblesvirtuallawlibrary
- The name of the person, candidate, party or. organization who commissioned or paid for the survey;
- The name of the person, polling firm or survey organization who conducted the survey;
- The period during which the survey was conducted, the methodology used, including the number of individual respondents and the areas from which they were selected, and the specific questions asked;
- The margin of error of the survey;
- For each question for which the margin of error is greater than that reported under paragraph (d), the margin of error for that question; and
- A mailing address and telephone number, indicating it as an address or telephone number at which the sponsor can be contacted to obtain a written report regarding the survey in accordance with Subsection 5.3. (Emphasis supplied)
5.3 The survey together with raw data gathered to support its conclusions shall be available for inspection, copying and verification by the COMELEC or by a registered political party or a bona fide candidate, or by any COMELEC-accredited citizen's arm. A reasonable fee sufficient to cover the costs of inspection, copying and verification may be charged.
(1) normative social influence, or people's desire to adopt the majority position in order to feel liked and accepted or believe they are on the winning team;
(2) informational social influence, or people learning from the 'wisdom of crowds' via social proof because they 'believe that others' interpretation of an ambiguous situation is more accurate . . . and will help [them] choose an appropriate course of action'; and
(3) people resolving cognitive dissonance by switching to the side they infer is going to win based on the poll.85cralawlawlibrary
The bandwagon effect, a form of conformity, is the mirror image of the false consensus effect, where people misperceive that their own behaviors and attitudes are more popular than they actually are. In the political domain, one mechanism underlying the false consensus effect is wishful thinking - people gaining utility from thinking their candidate is ahead or their opinions are popular.86
Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue is a critical, and indeed defining, feature of a good polity." This theory may be considered broad, but it definitely "includes [a] collective decision making with the participation of all who will be affected by the decision." It anchors on the principle that the cornerstone of every democracy is that sovereignty resides in the people. To ensure order in running the state's affairs, sovereign powers were delegated and individuals would be elected or nominated in key government positions to represent the people. On this note, the theory on deliberative democracy may evolve to the right of the people to make government accountable. Necessarily, this includes the right of the people to criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies."
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a full discussion of public affairs." This court has, thus, adopted the principle that "debate on public issues should be uninhibited, robust, and wide open . . . [including even] unpleasantly sharp attacks on government and public officials."87cralawlawlibrary
The old political families, however are not as strong in the Senate as they are in the House. This could be read, if not as a total repudiation by voters of family power, then at least as an attempt by them to tap other sources of national leadership. Celebrities and military and police officers have emerged as alternatives to traditional politicians. It could be that these new men and women have captured the popular imagination or that they are more in tune with the public pulse. But their emergence could very well be seen as an indication of the paucity of choices: Political parties, for one, have not succeeded in proffering a wider range of options to an electorate weary of trapos.98
But the "celebritification" of the Senate can also be interpreted as the democratization of an exclusive body once reserved only for the very rich, the politically experienced, and the intellectually brilliant. In a sense, the bar of entry has been lowered, and anyone with national renown can contest a seat in a chamber once famous for sharp debates and polysyllabic peroration.
The main criterion for a Senate seat is now name recall. This is where celebrities have the edge even over older political families with bankable names. . . .
. . . .
The diminishing clout of old families in the Senate—and their continued dominance in the House—shows the push and pull of two contrary tendencies. The first tendency is toward the new: The importance of name recall in national elections taking place in a media-inundated environment makes it easier for movie and media personalities, and harder for old-style politicians, to be elected. The second tendency is veering toward the old: At the district level, trapo-style patronage and machine politics remain deeply entrenched, giving political families the edge in elections."99
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how institutionalized inequality exists as a background limitation, rendering freedoms exercised within such limitation as merely "protecting] the already established machinery of discrimination." In his view, any improvement "in the normal course of events" within an unequal society, without subversion, only strengthens existing interests of those in power and control.
In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises liberties. In his words:
Liberty is selfi-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series of synthetic judgments. It stipulates the ability to determine one's own life: to be able to determine what to do and what not to do, what to suffer and what not. But the subject of this autonomy is never the contingent, private individual as that which he actually is or happens to be; it is rather the individual as a human being who is capable of being free with the others. And the problem of making possible such a harmony between every individual liberty and the other is not that of finding a compromise between competitors, or between freedom and law, between general and individual interest, common and private welfare in an established society, but of creating the society in which man is no longer enslaved by institutions which vitiate self-determination from the beginning. In other words, freedom is still to be created even for the freest of the existing societies.
Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people — "implies a necessary condition, namely, that the people must be capable of deliberating and choosing on the basis of knowledge, that they must have access to authentic information, and that, on this basis, their evaluation must be the result of autonomous thought'." He submits that "[different opinions and 'philosophies' can no longer compete peacefully for adherence and persuasion on rational grounds: the 'marketplace of ideas' is organized and delimited by those who determine the national and the individual interest."
A slant toward left manifests from his belief that "there is a 'natural right' of resistance for oppressed and overpowered minorities to use extralegal means if the legal ones have proved to be inadequate." Marcuse, thus, stands for an equality that breaks away and transcends from established hierarchies, power structures, and indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."101
In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting political equality prevails over speech." This view allows the government leeway to redistribute or equalize 'speaking power,' such as protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically subdued within society's ideological ladder. This view acknowledges that there are dominant political actors who, through authority, power, resources, identity, or status, have capabilities that may drown out the messages of others. This is especially true in a developing or emerging economy that is part of the majoritarian world like ours.
. . .
The scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality and the effect of speech. It valorizes the ability of human beings to express and their necessity to relate. On the other hand, a complete guarantee must also take into consideration the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the cultural hegemony of the majority may have the effect of drowning out the speech and the messages of those in the minority. In a sense, social inequality does have its effect on the exercise and effect of the guarantee of free speech. Those who have more will have better access to media that reaches a wider audience than those who have less. Those who espouse the more popular ideas will have better reception than the subversive and the dissenters of society. To be really heard and understood, the marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This view, thus, restricts laws or regulation that allows public officials to make judgments of the value of such viewpoint or message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must provide limits to some expression during electoral campaigns.104
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their political parties or their political parties may be regulated as to time, place, and manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not amount to an election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is made with or on private property.105 [Emphasis in the original]
Compelling governmental interest would include constitutionally declared principles. We have held, for example, that "the welfare of children and the State's mandate to protect and care for them, as parens patriae, constitute a substantial and compelling government interest in regulating . . . utterances in TV broadcast."111
[T]he rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC—created and explicitly made independent by the Constitution itself—on a level higher than statutory administrative organs.123
Resolution No. 9674 makes it an election offense for a survey firm not to disclose the names of subscribers who have paid substantial amounts to them, even if ihe survey portions provided to them have not been published. 1'his requirement is unduly burdensome and onerous and constitutes a prior restraint on the right of survey firms to gather information on public opinion and disseminate it to the citizenry.
. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate because they will not have enough clients and will not be financially sustainable. COMELEC will finally be able to do indirectly what it could not do directly, which is to prohibit the conduct of election surveys and the publication or dissemination of the results to the public.126
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.128 (Emphasis supplied, citations omitted)
[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people." Invariably described as "the most essential, insistent, and illimitable of powers" and "in a sense, the greatest and most powerful attribute of government," the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice Jose P. Bengzon in Philippine Long Distance Company vs. City of Davao, et al. police power "is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life." We were even more emphatic in Vda. de Genuino vs. The Court of Agrarian Relations, et al, when We declared: "We do not see why public welfare when clashing with the individual right to property should not be made to prevail through the state's exercise of its police power."139 (Citations omitted)
Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The COMELEC shall promulgate and furnish all political parties and candidates and the mass media entities the rules and regulations for the implementation of this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Bldg. 881).
Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or broadcast through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Bldg. 881). (Emphasis supplied)
[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only makes reference to the Resolution by its number and title but also indicates its date of promulgation, the two newspapers of general circulation in which it was published, it date of publication, and, more important [sic], reproduces in full its dispositive portion[.]149
Endnotes:
1Rollo, pp. 3-18.
2 Id. at 22-24.
3 Id. at 16.
4 Id. at 23.
5 Id.
6 Id. at 5.
7 Id. at 6.
8 Id.
9 Id. at 25 and 29.
10 Id. at 25-29.
11 Id. at 28-29.
12 Id. at 25.
13 Id. at 26.
14 Id. at 44-45.
15 Id. at 45.
16 Id. at 7.
17 Id.
18 Id. at 23.
19 CONST., art. IX-C, sec. 2 provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.
20 Rep. Act. No. 9006 (2001), sec. 5.1 to sec. 5.3 provide: SEC. 5. Election Surveys. -
5.1 Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as "Survey").
5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey must likewise publish the following information:5.3 The survey together with raw data gathered to support its conclusions shall be available for inspection, copying and verification by the COMELEC or by a registered political party or a bona fide candidate, or by any COMELEC-accredited citizen's arm. A reasonable fee sufficient to cover the costs of inspection, copying and verification may be charged.
- The name of the person, candidate, party or organization who commissioned or paid for the survey;
- The name of the person, polling firm or survey organization who conducted the survey;
- The period during which the survey was conducted, the methodology used, including the number of individual respondents and the areas from which they were selected, and the specific questions asked;
- The margin of error of the survey;
- For each question for which the margin of error is greater than that reported under paragraph (d), the margin of error for that question; and
- A mailing address and telephone number, indicating it as an address or telephone number at which the sponsor can be contacted to obtain a written report regarding the survey in accordance with Subsection 5.3.
21Rollo, pp. 22-23.
22 Id. at 7.
23 Id.
24 Id. at 53-54.
25 Id.
26 Id. at 96-97.
27 Id at 97.
28 Id.
29 Id. at 98-99.
30 Batas Blg. 881 (1985), sec. 264 provides:
SECTION 264. Penalties. - Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year, but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed upon such party after criminal action has been instituted in which their corresponding officials have been found guilty.
In case of prisoner or prisoners illegally released from any penitentiary or jail during the prohibited period as provided in Section 261, paragraph (n) of this Code, the director of prisons, provincial warden, keeper of the jail or prison, or persons who are required by law to keep said prisoner in their custody shall, if convicted by a competent court, be sentenced to suffer the penalty of prision mayor in its maximum period if the prisoner or prisoners so illegally released commit any act of intimidation, terrorism of interference in the election.
31Rollo, p. 98.
32 Id. at 99.
33 Id. at 8.
34 Id. at 3.
35 Id. at 9-12.
36 Id. at 14.
37 Id. at 13.
38 Id. at 12-13.
39 Id. at 16.
40 Id. at 113.
41 Id.
42 Id. at 149-165.
43 Id. at 185-195.
44 Id. at 197-198.
45 Id. at 202-221.
46 Id. at 240-260.
47 CONST., art. II, sec. 26 provides:
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
48Rollo, p. 11.
49 Id.
50 Id. at 245, citing Ligot v. Commission on Elections, 31 Phil. 45, 47 (1970) [Per Curiam, En Banc].
51 CONST., art. IX-C, sec. 2(1).
52 Rollo, p. 246.
53 Id.
54 Id.
55 Id. at 247.
56 Id. at 248-249.
57 Rep. Act No. 9006 (2001), sec. 2 provides:
SEC. 2. Declaration of Principles. - The State shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and" credible elections.
The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination.
58 Rep. Act No. 9006(2001), sec. 2.
59 CONST., art. XIII, sec. 1 provides:
Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
60 CONST., art. II, sec. 26 provides:
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
61 CONST., art. IX-C, sec. 4 provides:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.
62 Rep. Act No. 9006 (2001), sec. 3 provides:
SEC. 3. Lawful Election Propaganda. - Election propaganda, whether on television, cable television, radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party-list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall include:
3.1 Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one-half inches in width and fourteen inches in length;
3.2 Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office;
3.3 Cloth, paper or cardboard posters, whether framed, or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally;
3.4 Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and
3.5 All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act.
63 Rep. Act No. 9006 (2001), sec. 4 provides:
SEC. 4. Requirements for Published or Printed and Broadcast Election Propaganda. -
4.1 Any newspaper, newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, comic books, circulars, handbills, bumper stickers, streamers, simple list of candidates or any published or printed political matter and any broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be identified by the reasonably legible or audible words "political advertisement paid for," followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired.
4.2 If the broadcast is given free of charge by the radio or television station, it shall be identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity.
4.3 Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC as provided in Subsection 6.3 hereof.
64 Rep. Act No. 9006 (2001), sec. 6 provides:
SEC. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and one-half (1/2) page in- tabloids thrice a week per newspaper, magazine or other publications, during the campaign period. 6.2For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party.
- Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
- Each bona fide candidate or registered political party for a locally elective office shall be entitled to. not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.
6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within five (5) days after its signing. In every case, it shall be signed by the donor, the candidate concerned or by the duly authorized representative of the political party.
6.4 No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the election period.
In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending.
The COMELEC shall ensure that radio or television or cable television broadcasting entities shall not allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including said candidate and/or political party in such program respecting, however, in all instances the right of said broadcast entities to air accounts of significant news or news worthy events and views on matters of public interest.
6.5 All members of media, television, radio or print, shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by omission or improper emphasis. They shall recognize the duty to air the other side and the duty to correct substantive errors promptly.
6.6 Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period: Provided, That any media practitioner who is an official of a political party or a member of the campaign staff of a candidate or political party shall not use his/her time or space to favor any candidate or political party.
6.7 No movie, cinematograph or documentary portraying the life or biography of a candidate shall be publicly exhibited in a theater, television station or any public forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate shall likewise be publicly exhibited in a theater or any public forum during the campaign period.
65 Rep. Act No. 9006 (2001), sees. 7 and 8 provide: SEC. 7. Affirmative Action by the COMELEC. -
7.1 Pursuant to Sections 90 and 92 of the Omnibus Election Code (Batas Pambansa Blg. 881), the COMELEC shall procure the print space upon payment of just compensation from at least three (3) national newspapers of general circulation wherein candidates for national office can announce their candidacies. Such space shall be allocated free of charge equally and impartially among all the candidates for national office on three (3) different calendar days: the first day within the first week of the campaign period; the second day within the fifth week of the campaign period; and the third day within the tenth week of the campaign period.
7.2 The COMELEC shall also procure free airtime from at least three (3) national television networks and three (3) national radio networks, which shall also be allocated free of charge equally and impartially among all candidates for national office. Such free time shall be allocated on three (3) different calendar days: the first day within the first week of the campaign period; the second day within the fifth week of the campaign period; and the third day within the tenth week of the campaign period.
7.3 The COMELEC may require national television and radio networks to sponsor at least three (3j national debates among presidential candidates and at least one (1) national debate among vice presidential candidates. The debates among presidential candidates shall be scheduled on three (3) different calendar days: the first debate shall be scheduled within the first and second week of the campaign period; the second debate within the fifth and sixth week of the campaign period; and the third debate shall be scheduled within the tenth and eleventh week of the campaign period.
The sponsoring television or radio network may sell airtime for commercials and advertisements to interested advertisers and sponsors. The COMELEC shall promulgate rules and regulations for the holding of such debates.
SEC. 8. COMELEC Space and Time. - The COMELEC shall procure space in at least one (1) newspaper-of general circulation and air time in at least one (1) major broadcasting station or entity 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": Provided, further, That in the absence of said broadcasting station or entity, broadcasting shall be done in any radio or television station in said province or city, which shall be known as "COMELEC Time." Said time shall be allocated to the COMELEC free of charge, while said space shall be allocated to the COMELEC upon payment of just compensation. The COMELEC time and space shall be utilized exclusively by the COMELEC for public information dissemination on election-related concerns.
66 Rep. Act No. 9006 (2001), sec. 9 provides:
SEC. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect common poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit election propaganda: Provided, That the size of the poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in public places or property which shall be allocated equitably and impartially among the candidates.
67 Rep. Act No. 9006 (2001), sec. 10 provides:
SEC. 10. Right to Reply. - All registered parties and bona fide candidates shall have the right to reply to charges .published against them. The reply shall be given publicity by the newspaper, television and/or radio station which first printed or aired the charges with the same prominence or in the same page or section or in the same time slot as the first statement.
68 Rep. Act No. 9006 (2001), sec. 11 provides:
SEC. 11. Rates for Political Propaganda. - During the election period, media outlets shall charge registered political parties and bona fide candidates a discounted rate of thirty percent (30%) for television, twenty percent (20%) for radio and ten percent (10%) for print over the average rates charged during the first three quarters of the calendar year preceding the elections.
69 Rep. Act No. 9006 (2001), sec. 5.4 provides: SEC. 5. Election Surveys. -
5.4 Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.
70 409 Phil. 571 (2001) [Per J. Mendoza, En Bane].
71 Rep. Act No. 9006 (2001), sec. 5.5 provides: SEC. 5. Election Surveys. -
5.5 Exit polls may only be taken subject to the following requirements:72 David Rothschild and Neil Malhotra, Are public opinion polls self-fulfilling prophecies? 1 <http://rap.sagepub.eom/content/sprap/l/2/2053168014547667.full.pdf>(visited March 25, 2015).
- Pollsters shall not conduct their surveys within fifty (50) meters from the poling place, whether said survey is taken in a home, dwelling place and other places;
- Pollsters shall wear distinctive clothing;
- Pollsters shall inform the voters that they may refuse to answer; and
- The result of the exit polls may be announced after the closing of the polls on election day, and must dearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend.
73 J. Gonthier, Dissenting Opinion in Thomson Newspapers Co. v. Canada (Attorney General), 1 S.C.R. 877, 893 (1998), citing Guy Lachapelle, Polls and the Media in Canadian Elections: Taking THE PULSE, Ottawa: Royal Commission on Electoral Reform and Party Financing (1991).
74 Public Opinion Polling in Canada, Canada Library of Parliament 6 (visited March 25, 2015).
75 J. Gonthier, Dissenting Opinion in Thomson Newspapers Co. v. Canada (Attorney General), 1 S.C.R. 877, 893 (1998), citing Guy LACHAPELLE, POLLS AND THE MEDIA IN CANADIAN ELECTIONS: TAKING THE PULSE, Ottawa: Royal Commission on Electoral Reform and Party Financing (1991).
76 Public Opinion Polling in Canada, Canada Library of Parliament 6 <http://www.parl.gc.ca/Content/LOP/researchpublications/bp371-e.pdf> (visited March 25, 2015).
77 Id. at 7.
78 J. Gonthier, Dissenting Opinion in Thomson Newspapers Co. v. Canada (Attorney General), 1 S.C.R. 877 (1998), citing GUY LACHAPELLE, POLLS AND THE MEDIA IN CANADIAN ELECTIONS: TAKING THE PULSE, Ottawa: Royal Commission on Electoral Reform and Party Financing (1991). Public Opinion Polling in Canada, Canada Library of Parliament 7 <http://www.parl.gc.ca/Content/LOP/researchpublications/bp371-e.pdf> (visited March 25, 2015).
80 Id. at 6.
81 Id. at 7.
82 Id. at 6.
83 David Rothschild and Neil Malhotra, Are public opinion polls self-fulfilling prophecies? 6 <http://rap.sagepub.eom/content/sprap/l/2/2053168014547667.full.pdf> (visited March 25, 2015).
84 Id. at 1.
85 Id. at 2.
86 Id.
87Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 37 [Per J. Leonen, En Banc], citing James A. Gardner, Shut Up and Vote: A Critique of Deliberative Democracy and the Life of Talk, 63 TENN. L. Rev. 421, 422 (1996); John J. Worley, Deliberative Constitutionalism, BYU L. Rev. 431, 441 (2009), citing Jon Elster, Deliberative Democracy 8 (1998); CONST., art. II, sec. 1; J. Sanchez, Concurring and Dissenting Opinion in Gonzales, et al. v. COMELEC, 137 Phil. 471, 523 (1969) [Per J. Fernando, En Bane], citing Concurring Opinion in Whitney v. California, 274 U.S. 357, 375 (1927); United States v. Bustos, 37 Phil. 731, 740 (1918) [Per J. Malcolm, En Banc]; Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 716 [Per J. Gutierrez, Jr., En Banc]. See also Gonzales, et al. v. COMELEC, 137 Phil. 471, 493 (1969) [Per J. Fernando, En Banc].
88 David Rothschild and Neil Malhotra, Are public opinion polls self-fulfilling prophecies? 6<http://rap.sagepub.eom/content/sprap/l/2/2053168014547667.full.pdf> (visited March 25, 2015).
89 Id.
Public Opinion Polling in Canada, Canada Library of Parliament 4 <http://www.parl.gc.ca/Content/LOP/researchpublications/bp371-e.pdf> (visited March 25, 2015).
91 CONST., art. II, sec. 26.
92 CONST., art. II, sec. 26.
93 Shiela S. Coronel, Yvonne T. Chua, Boomba B. Cruz, and Luz Rimban, THE RULEMAKERS: HOW THE WEALTHY AND WELL-BORN DOMINATE THE CONGRESS 24 (2007).
94 AN ANARCHY OF FAMILIES: STATE AND FAMILY IN THE PHILIPPINES, edited by Alfred W. McCoy 10 (1994).
95 Shiela S. Coronel, Yvonne T. Chua, Boomba B. Cruz, and Luz Rimban, THE RULEMAKERS: HOW THE WEALTHY AND WELL-BORN DOMINATE THE CONGRESS 51 (2007).
96 AN ANARCHY OF FAMILIES: STATE AND FAMILY IN THE PHILIPPINES, EDITED BY ALFRED W. MCCOY 11 (1994).
97 Shiela S. Coronel, Yvonne T. Chua, Boomba B. Cruz, and Luz Rimban, THE RULEMAKERS: HOW THE WEALTHY AND WELL-BORN DOMINATE THE CONGRESS 33 (2007).
98 Id.
99 Id. at 35.
100 Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> [Per J. Leonen, En Banc].
101 Id. at 56-57, citing Herbert Marcuse, Repressive Tolerance, in A CRITIQUE OF PURE TOLERANCE 85 (1965).
102 Id. at 92, citing footnote 64 of Freedom of Speech and Expression, 116 HARV. L. REV. 272 (2002) and Freedom of Speech and Expression, 116 HARV. L. Rev. 272, 278 (2002).
103Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf>[Per J. Leonen, En Banc].
104 Id. at 56 and 62, citing Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 HARV. L. Rev. 144-146 (2010).
105 Id. at 62-63.
106 Rep. Act No. 9006(2001), sec. 5.2(a) provides: Sec. 5. Election Surveys. -
. . .
5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey must likewise publish the following information:107Rollo, p. 246.
- The name of the person, candidate, party or organization who commissioned or paid for the survey[.]
108See Saludaga v. Sandiganbayan, 633 Phil. 369 (2010) [Per J. Mendoza, Third Division].
109Rollo, p. 246.
110 Id.
111Diocese of Bacolod v. COMELEC, G.R, No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> 50 [Per J. Leonen, En Banc], citing CONST., art. II, sees. 12 and 13; and Soriano v. Laguardia, et al., 605 Phil. 43, 106 (2009) [Per J. Velasco, Jr., En Banc].
112 CONST., art. II, sec. 26 provides:
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
113Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf>63 [Per J. Leonen, En Banc].
114 Id.
115Rollo, pp. 210-212.
116Bolos v. Bolos, 648 Phil. 630, 637 (2010) [Per J. Mendoza, Second Division].
117Rollo, p. 11.
118 See for instance J. Leonen, Dissenting Opinion in Chavez v. Judicial and Bar Council, G.R. No. 202242, April 16, 2013 <http://sc.judiciary.gov.ph/jurisprudence/2013/april2013/202242Jeonen.pdf> 8 [Per J. Mendoza, En Banc]: "Thus, the authoritativeness of text is no excuse to provide an unworkable result or one which undermines the intended structure of government provided in the Constitution. Text is authoritative but it is not exhaustive of the entire universe of meaning."
119 Rollo, p. 245, citing Ligot v. Commission on Elections, G.R. No. L-31380, January 21, 1970, 31 SCRA 45, 47 [Per Curiam, En Banc].
120 CONST., art. IX-C, sec. 2(1).
121See CONST., art. VIII, seel, par. 2.
122 G.R. No. 206987, September 10, 2013, 705 SCRA 340 [Per J. Perez. En Banc].
123 Id. at 348-349, citing Mastura v. Commission on Elections, 349 Phil. 423, 429 (1998) [Per J. Bellosillo, En Banc].
124 554 Phil. 563 (2007) [Per J. Nachura, En Banc],
125 Id. at 585.
126Rollo, pp. 212-213.
127 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].
128 Id. at 203-204.
129Rollo, p. 250.
130 Id. at 213.
131 CONST., art. III, sec. 10 provides:
Section 10. No law impairing the obligation of contracts shall be passed.
132Rollo, p. 13.
133 Id. at 255.
134 Id. at 256.
135Abe v. Foster Wheeler Corp, 110 Phil. 198, 203 (1960) [Per J. Barrera, En Banc].
136 National Steel Corporation v. The Regional Trial Court of Lanao del Norte, Branch 2, Iligan City, 364 Phil. 240, 256 (1999) [Per J. Purisima, Third Division].
137Eastern Shipping Lines, Inc. v. Philippine Overseas Employment Administration, 248 Phil. 762, 771 (1988) [Per J. Cruz, First Division], citing Stone v. Mississippi, 101 US 814.
138 183 Phil. 176 (1979) [Per J. Santos, En Banc].
139 Id. at 188-189.
140 Id. at 188.
141 Const., art. II, sec. 26 provides:
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
142Rollo, p. 23.
143 Id. at 14-15.
144 COMELEC Resolution No. 9615 (2013), sec. 26 provides:
SECTION 26. Election Surveys. - During the election period, any person, whether natural or juridical, candidate or organization may conduct an election survey. The survey shall be published and shall include the following information:
(a) The name of the person, candidate, party, or organization that commissioned or paid for the survey;
(b) The name of the person, polling firm or survey organization who conducted the survey;
(c) The period during which the survey was conducted, the methodology used, including the number of individual respondents and the areas from which they were selected, and the specific questions asked;
(d) The margin of error of the survey;
(e) For each question for which the margin of error is greater than that reported under paragraph (4), the margin of error for that question; and
(f) A mailing address and telephone number, indicating it as an address or telephone number at which the sponsor can be contacted to obtain a written report regarding the survey in accordance with the next succeeding paragraph.
(g) The survey together with raw data gathered to support its conclusions shall be available for inspection, copying and verification by the Commission. Any violation of this SECTION shall constitute an election offense.
145Rollo, pp. 257-258.
146 Id. at 258.
147 Id. at 23.
148 Id. at 251.
149 Id.
150 Id. at 252.
151 Id.
152 Id. at 23.
153 Id.
154 Id. at 97.