EN BANC
G.R. No. 222702, April 05, 2016
RAPPLER, INC., Petitioner, v. ANDRES D. BAUTISTA, Respondent.
R E S O L U T I O N
CARPIO, J.:
Petitioner Rappler, Inc. (petitioner) filed a petition for certiorari and prohibition against Andres D. Bautista (respondent), in his capacity as Chairman of the Commission on Elections (COMELEC). The petition seeks to nullify Part VI (C), paragraph 19 and Part VI (D), paragraph 20 of the Memorandum of Agreement (MOA) on the 2016 presidential and vice-presidential debates, for being executed without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction and for violating the fundamental rights of petitioner protected under the Constitution. The MOA, signed on 13 January 2016, was executed by the COMELEC through its Chairman, respondent Bautista, and the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), and the various media networks, namely: ABS-CBN Corporation, GMA Network, Inc., Nine Media Corporation, TV5 Network, Inc., Philstar Daily, Inc., Philippine Daily Inquirer, Inc., Manila Bulletin Publishing Corporation, Philippine Business Daily Mirror Publishing, Inc., and petitioner. Under the MOA, the KBP was designated as Debate Coordinator while ABS-CBN, GMA, Nine Media, and TV5, together with their respective print media partners were designated as Lead Networks.
Petitioner alleged that on 21 September 2015, respondent called for a meeting with various media outlets to discuss the "PiliPinas 2016 Debates," for presidential and vice-presidential candidates, which the COMELEC was organizing.1 Respondent showed a presentation explaining the framework of the debates, in which there will be three presidential debates and one vice presidential debate. Respondent proposed that petitioner and Google, Inc. be in charge of online and social media engagement. Respondent announced during the meeting that KBP will coordinate with all media entities regarding the organization and conduct of the debates.
On 22 September 2015, petitioner sent a proposed draft for broadcast pool guidelines to COMELEC and the KBP. A broadcast pool has a common audio and video feed of the debates, and the cost will be apportioned among those needing access to the same. KBP informed petitioner that the proposal will be discussed in the next meeting.
On 19 October 2015, another meeting was held at the COMELEC office to discuss a draft MOA on the debates. In the draft, petitioner and Google's participation were dropped in favor of the online outlets owned by the Lead Networks. After the meeting, the representatives of the Lead Networks drew lots to determine who will host each leg of the debates. GMA and its partner Philippine Daily Inquirer sponsored the first presidential debate in Mindanao on 21 February 2016; TV5, Philippine Star, and Businessworld sponsored the second phase of presidential debate in the Visayas on 20 March 2016; ABS-CBN and Manila Bulletin will sponsor the presidential debate to be held in Luzon on 24 April 2016; and the lone vice-presidential debate will be sponsored by CNN, Business Mirror, and petitioner on 10 April 2016. Petitioner alleged that the draft MOA permitted online streaming, provided proper attribution is given the Lead Network.
On 12 January 2016, petitioner was informed that the MOA signing was scheduled the following day. Upon petitioner's request, the draft MOA was emailed to petitioner on the evening of 12 January 2016. Petitioner communicated with respondent its concerns regarding certain provisions of the MOA particularly regarding online streaming and the imposition of a maximum limit of two minutes of debate excerpts for news reporting. Respondent assured petitioner that its concerns will be addressed afterwards, but it has to sign the MOA because time was of the essence. On 13 January 2016, petitioner, along with other media networks and entities, executed the MOA with the KBP and the COMELEC for the conduct of the three presidential debates and one vice-presidential debate. Petitioner alleged that it made several communications with respondent and the COMELEC Commissioners regarding its concerns on some of the MOA provisions, but petitioner received no response. Hence, this petition.
In this petition for certiorari and prohibition, petitioner prays for the Court to render judgment:
a. Declaring null and void, for being unconstitutional, pertinent parts of the Memorandum of Agreement that violate the rights of the Petitioner, specifically Part VI (C), paragraph 19 and Part VI (D), paragraph 20 [of the MOA];
b. Prohibiting the Respondent from implementing specifically Part VI (C), paragraph 19 and Part VI (D), paragraph 20 of the MOA;
c. Pending resolution of this case, issuing a Preliminary Injunction enjoining the Respondent from implementing Part VI (C), paragraph 19 and Part VI (D), paragraph 20 of the MOA; and
d. Pending resolution of this case, issuing a Preliminary Mandatory Injunction requiring the Respondent to ensure an unimpaired and equal access to all mass media, online or traditional, to all the Debates.2
VI ROLES AND RESPONSIBILITIES OF THE LEAD NETWORKS
x x x x
C. ONLINE STREAMING
x x x x
19. Subject to copyright conditions or separate negotiations with the Lead Networks, allow the debates they have produced to be shown or streamed on other websites;
D. NEWS REPORTING AND FAIR USE
20. Allow a maximum of two minutes of excerpt from the debates they have produced to be used for news reporting or fair use by other media or entities as allowed by the copyright law: Provided, that the use of excerpts longer than two minutes shall be subject to the consent of the Lead Network concerned;3
Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have taken to question the assailed Resolution of the COMELEC. Technically, respondent may have a point. However, considering the very important and pivotal issues raised, and the limited time, such technicality should not deter the Court from having to make the final and definitive pronouncement that everyone else depends for enlightenment and guidance. "[T]his Court has in the past seen fit to step in and resolve petitions despite their being the subject of an improper remedy, in view of the public importance of the issues raised therein.6
VI
ROLES AND RESPONSIBILITIES OF THE LEAD NETWORKS
x x x x
B1. LIVE BROADCAST
10. Broadcast the debates produced by the Lead Networks in their respective television stations and other news media platforms;
11. Provide a live feed of the debate to other radio stations, other than those of the Lead Network's, for simultaneous broadcast;
12. Provide a live feed of the debates produced by them to radio stations not belonging to any of the Lead Networks for simultaneous broadcast;
x x x x
C. ONLINE STREAMING
17. Live broadcast the debates produced by the Lead Networks on their respective web sites and social media sites for free viewing by the public;
18. Maintain a copy of the debate produced by the Lead Network on its on-line site(s) for free viewing by the public during the period of elections or longer;
19. Subject to copyright conditions or separate negotiations with the Lead Networks, allow the debates they have produced to be shown or streamed on other websites;8 (Boldfacing and underscoring supplied)
SEC. 184. Limitations on Copyright. - 184.1 Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:
x x x x
(c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved; Provided, That the source is clearly indicated; (Sec. 11, P.D. No. 49) (Boldfacing and underscoring supplied)
Endnotes:
1 Section 7.3 of Republic Act No. 9006 (Fair Election Act) provides:
chanRoblesvirtualLawlibrary7.3. The COMELEC may require national television and radio networks to sponsor at least three (3) 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.2Rollo, p. 28.
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.
3 Id. at 40-41.
4Kapisanan ng mga Kawcmi ng Energy Regulatory Board v. Commissioner Barin, 553 Phil. 1 (2007); Rivera v. Hon. Espiritu, 425 Phil. 169 (2002).
5 G.R. Nos. 205357, 205374, 205592, 205852, and 206360, 2 September 2014, 734 SCRA 88,
6 Id. at 126.
7 The first presidential debate, sponsored by GMA and its print media partner, Philippine Daily Inquirer, was held in Cagayan de Oro City on 21 February 2016. The second presidential debate, sponsored by TV5 and its partners, Philippine Star and BusinessWorld, was held in Cebu City on 20 March 2016. ABS-CBN and its print media partner, Manila Bulletin, will sponsor the last presidential debate, which will be held in Pangasinan on 24 April 2016. The sole vice-presidential debate will be sponsored by CNN Philippines, in partnership with Business Mirror and petitioner Rappler, in Manila on 10 April 2016; http://www.philstar.com/news-feature/2016/02/24/1556331/infographic-presidential-debates-schedule; http://cnnphilippines.com/news/2016/01/13/comelec-presidential-debates-cnn-philippines-gma-abs-cbn-tv5-philippine-star-rappler-business-mirror-manila-bulletin.html
8Rollo, p. 40.
9 Under Part VI (A) (7) of the MOA, the Lead Networks shall "[p]romote the debates for maximum audience."
10 Stated on one of the WHEREAS clauses of the MOA.
11 The MOA enumerates the roles and responsibilities of the COMELEC:
chanRoblesvirtualLawlibraryIV
ROLES AND RESPONSIBILITIES OF COMELEC
The COMELEC shall:
1. Formulate the policies, rules, and guidelines to be followed in organizing and conducting the debates pursuant to Section 7.3 of R.A. 9006;
2. Resolve issues that may arise among the parties involved in the organization of the debates;
3. Arrange the participation of the candidates in the debates, including the negotiations of the terms and conditions of participation. In this regard, a separate memorandum of agreement shall be executed between COMELEC and the participating candidates in order to specify the candidates' roles and the rules which shall be binding upon them;
4. Approve the venue, format and mechanics for the debates;
5. Approve the debate moderators, panelists, and on-site live audiences for the debates proposed by the Lead Networks;
6. Approve the topics of the debates, in consultation with the Lead Networks, to ensure that they are in accordance with the objectives defined above and are consistent with the relevant election laws;
7. Enlist the support of other agencies or organizations in the preparation and conduct of the debates;
8. Provide guidelines for media coverage of the debates in accordance with election laws and this Agreement;
9. Provide over-all supervision for the debates.
LEONEN, J.:
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly authorized by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials.
Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, the Court is not at all precluded from making the inquiry provided the challenge was properly brought by interested or affected parties. The Court has been thereby entrusted expressly or by necessary implication with both the duty and the obligation of determining, in appropriate cases, the validity of any assailed legislative or executive action. This entrustment is consistent with the republican system of checks and balances.11 (Emphasis supplied, citations omitted)
15-0560 IN THE MATTER OF THE CREATION OF THE TE1CHNICAL1 [WORKING] GROUP FOR THE CONDUCT OF THE PRESIDENTIAL DEBATE PURSUANT TO REPUBLIC ACT NO. 9006, IN CONNECTION WITH THE MAY 9, 2016 ELECTIONS
In view of Republic Act No. 9006, otherwise known as the "Fair Election Act", which provides for the holding of free, orderly, honest, peaceful, and credible election through fair election practices, and Section 7.3 thereof, which provides that the Commission on Elections may require national television and radio networks to sponsor at least three (3) national debates among presidential candidates and at least one (1) among vice presidential candidates, the Commission RESOLVED, as its hereby RESOLVES, to authorize Chairman J. Andres D. Bautista to create the Technical Working Group for the conduct of the presidential debate in connection with the May 9, 2016 Elections, with representatives from the Offices! of the Members of the Commission en bane.
Let the Office of the Chairman implement this Resolution.
SO ORDERED.19 (Emphasis in the original)
In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.
. . . The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution[.]25
We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.35 (Citations omitted)
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 that the subversive and the dissenters of society. To be really heard and understood, the marginalized view normally undergoes its own degree of struggle.37
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.39
While the Commission on Elections does have the competence to interpret Section 6, it must do so without running afoul of the fundamental rights enshrined in our Constitution, especially of the guarantee of freedom of expression and the right to suffrage. Not only must the Commission on Elections have the competence, it must also be cognizant of our doctrines in relation to any kind of prior restraint.
....
What Resolution No. 9615 does not take into consideration is that television and radio networks are not similarly situated. The industry structure consists of network giants with tremendous bargaining powers that dwarf local community networks. Thus, a candidate with only a total aggregate of 120/180 minutes of airtime allocation will choose a national network with greater audience coverage to reach more members of the electorate. Consequently, the big networks can dictate the price, which it can logically set at a higher price to translate to more profits. This is true in any setting especially in industries with high barriers to entry and where there are few participants with a high degree of market dominance. Reducing the airtime simply results in a reduction of speech and not a reduction of expenses.
Resolution No. 9615 may result in local community television and radio networks not being chosen by candidates running for national offices. Hence, advertisement by those running for national office will generally be tailored for the national audience. This new aggregate time may, therefore, mean that local issues which national candidates should also address may not be the subject of wide-ranging discussions.
....
Election regulations are not always content neutrul regulations, and even if they were, they do not necessarily carry a mantle of immunity from free speech scrutiny. The question always is whether the regulations are narrowly tailored so as to meet a significant governmental interest and so that there is a lesser risk of excluding ideas for a public dialogue. The scrutiny for regulations which restrict speech during elections should be greater considering that these exercises substantiate the important right to suffrage. Reducing airtime to extremely low levels reduce information to slogans and sound bites which may impoverish public dialogue. We know that lacking the enlightenment that comes with information and analysis makes the electorate's role to exact accountability from elected public officers a sham[.]46 (Emphasis supplied, citations omitted)
Endnotes:
1Rollo, p. 183, Comment, citing Spouses Dacudao v. Secretary Gomales, 701 Phil. 96, 108 (2013) [Per J. Bersamin, En Banc].
2 Id.
3 Id. at 183-184.
4 CONST., art. VIII, sec. 1.
5See J. Leonen, Concurring Opinion, in Belgica v. Ochoa, G.R. Nos. 208566, November 19, 2013, 710 SCRA 1, 290 [Per J. Perlas-Bernabe, En Banc].
6 Id.
7Araullo v. Aquino III, G.R. Nos. 209287, July 1, 2014, 728 SCRA 1, 71 [Per J. Bersamin, En Banc]. Chief Justice Sereno, Associate Justices Peralta, Villarama. Jr., Perez, Mendoza, and Reyes concurred. Senior Associate Justice Carpio wrote a Separate Opinion. Associate Justice Velasco joined Associate Justice Del Castillo's Separate Concurring and Dissenting Opinion. Associate Justice Brion wrote a Separate Opinion. Associate Justices Perlas-Bernabe and Leonen wrote Separate Concurring Opinions. Associate Justice Leonardo-De Castro took no part, In this Court's February 3, 2015 Resolution http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/february2015/209287.pdf 8 [Per J. Bersamin, En Banc], the ponencia discussed; "The procedural challenges raised by the respondents, being a mere rehash of their earlier arguments herein, are dismissed for being already passed upon in the assailed decision." See also Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf
11 [Per J. Leonen, En Banc].
8 RULES OF COURT, Rule 65, sec. 1. Emphasis supplied.
9 RULES OF COURT, Rule 65, sec. 2. Emphasis supplied.
10Rollo, p. 183, Comment.
11 Araullo v. Aquino III, G.R. Nos. 209287, July 1, 2014, 728 SCRA 1, 74-75 [Per J. Bersamin, En Banc].
12Rollo, pp. 183-189, Comment. Respondent raises, among others, wrong remedy and failure to implead indispensable parties.
13 CONST., art. VIII, sec. 1.
14 See Angara v. Electoral Commission 63 Phil. 139, 157-159 (1936) [Per J. Laurel, En Banc].
15 CONST., art. VIII, sec. 1.
16See J. Leonen, Concurring Opinion in Belgica v. Ochoa, G.R. Nos. 208566, November 19, 2013, 710 SCRA 1,290 [Per J. Perlas-Bernabe, En Banc].
17 Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf 12 [Per J. Leonen, En Banc].
18 Rep. Act No. 9006 (2001), sec. 7.3.
19Rollo, p. 200, Excerpt from the Minutes of the Regular En Bane Meeting of the Commission on Elections Held on July 29, 2015.
20 See, for example, A.M. No. 08-8-7-SC (2016), The 2016 Revised Rules of Procedure for Small Claims Cases.
21 CIVIL CODE, art. 1898.
22 Rules of Court, Rule 65, sees. 1 and 2.
23Rollo, p. 12, Petition for Certiorari and Prohibition with Prayer for a Preliminary Mandatory Injunction.
24 Id. at 43, Memorandum of Agreement, part XII. 2.cralawred
25See Angara v. Electoral Commission, 63 Phil 139, 157 (1936) [Per J. Laurel]. See also Araullo v. Aquino III, G.R. Nos. 209287, July 1, 2014, 728 SCRA 1, 70-71 [Per J. Bersamin, En Banc].
26 CONST., art. III, sec. 4.cralawred
27See Diocese of Bacolod v. Commission on Elections, G.R. No, 205728, January 21, 2015 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf 32 [Per J, Leonen, En Banc]
28 380 Phil 780 (2000) [Per J. Panganiban, En Banc].
29 Id. at 787. See also Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf
32 [Per J, Leonen, En Banc]
30ABS-CBN Broadcasting Corporation v. Commission on Elections, 380 Phil 780, 800 (2000) [Per J. Panganiban, En Banc].
31 Id. at 787.
32 351 Phil 692 (1998) [Per J. Mendoza, En Bane],
33 Id, at 719.
34 G.R. No. 103956, March 31, 1992, 207 SCRA 712 [Perl Gutierrez, Jr., En Banc],
35Adiong v. Commission on Elections, C.R. No. 1,03956, March 31, 1992, 207 SCRA 712, 716 [Per J. Gutierrez, Jr,, En Banc]. See also Mutuc v. Commission on Elections, 146 Phil. 798, 805-806 (1970) [Per J. Fernando, En Banc].
36 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].
37 Id. at 62
38Rollo, p. 191, Comment,
39 CONST., art. IX-C, sec.4.cralawred
40See Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/2O5728.pdf 41 [Per J, Leonen, En Banc], citing Reyes v. Bagatsing, 210 Phil 457, 475 (1983) [Per C.J. Fernando, En Banc]; Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715 and 717 [Per J. Gutierrez, Jr., En Banc]; Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co.. Inc., 151-A Phil 656, 676 (1973) [Per J. Makasiar, En Banc].
41Chavez v. Gonzalez, 569 Phil 155, 203 (2008) [Per C.J. Puno, En Banc].
42 See J. Leonen, Concurring Opinion in GMA Network, Inc. v. Commission an Elections, G.R. Nos. 205357, September 2, 2014 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file-/jurisprudence/2014/september2014/205357_leonen.pdf
2 [Per J. Peralta, En Banc], citing Iglesia ni Cristo v. Court of Appeals, 328 Phil 893, 928 (1996) [Per J. Puno, En Banc]; Social Weather Station v. Commission on Elections, 409 Phil 571, 584-585 (2001) [Per J. Mendoza, En Banc].
43Chavez v. Gonzalez, 569 Phil 155, 203 (2008) [Per C.J. Puno, En Banc].
44GMA Network, Inc. v. Commission on Elections, G.R. Nos. 205357, September 2, 2014 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/september2014/205357.pdf [Per J. Peralta, En Banc].
43 Id. at 45.
46See J. Leonen, Concurring Opinion in GMA Network, Inc. v. Commission on Elections, G.R. Nos. 205357, September 2, 2014 http://sc.judiciai-y.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/september2014/205357_leonen.pdf
8, 10-12 [Per J. Peralta, En Banc].
47Rollo, p. 12, Petition for Certiorari and Prohibition with Prayer for a Preliminary Mandatory Injunction.