G.R. No. L-32546, October 17, 1970,
♦ Decision,
Makasiar, [J]
♦ Separate Opinion,
Reyes, Acting [CJ]
♦ Concurring Opinion,
Makalintal, [J]
♦ Concurring Opinion,
Castro, [J]
♦ Dissenting Opinion,
Fernando, [J]
♦ Dissenting Opinion,
Barredo, [J]
♦ Dissenting Opinion,
Teehankee, [J]
Manila
EN BANC
G.R. No. L-32546 October 17, 1970
ANACLETO D. BADOY, JR., petitioner,
vs.
JAIME N. FERRER, Chairman, CESAR MIRAFLOR, and LINO M. PATAJO, Members, Commission on Elections, respondents.
G.R. No. L-32551 October 17, 1970
ANACLETO D. BADOY, JR., petitioner,
vs.
JAIME N. FERRER, Chairman, CESAR MIRAFLOR, and LINO M. PATAJO, MEMBERS, Commission on Elections, respondents.
Anacleto D. Badoy, Jr. in his own behalf.
Office of the Solicitor General for respondents.
MAKASIAR, J.:
In these two cases, petitioner Anacleto D. Badoy, Jr. avers that he is a candidate for delegate to the Constitutional Convention for the lone district of North Cotabato; and pursuant to Sec. 19 of R.A. No. 6132, he prays in L-32546 that Sec. 12(F) of the law be declared unconstitutional as the same denies:.
(1) individuals, who are not candidates, their freedom of speech and of the press; and
(2) candidates the right to speak and write, discuss and debate in favor of their candidacies or against the candidacies of others.
Petitioner in G.R. No. L-32551 prays.
(1) that Sec. 12(F) of R.A. No. 6132 be so construed as to allow the printing and publication of comments and articles for or against a candidate, which are not-paid, without mentioning the names of all the other candidates with equal prominence (emphasis supplied); and
(2) that Comelec Resolution No. RR-724 be declared unconstitutional in so far as it prohibits the printing and publication of such comments and articles, which are not paid, unless the names of all the candidates are mentioned with equal prominence. (emphasis supplied)
However, after the filing of the herein petitions, the Comelec had amended paragraph 6 of its Resolution No. RR-724 of September 8, 1970 by promulgating Resolution No. RR-739 on September 29, 1970, which limits the prohibition in said paragraph 6 of Resolution No. RR-724 to the publication of paid comments or paid articles without mentioning the names of all the other candidates with equal prominence; and the pertinent portion of paragraph 6 as thus amended merely restates the ban in Sec. 12(F) of R.A. No. 6132. Since the relevant portion of paragraph 6 of Resolution No. RR-724 as amended no longer prohibits the printing and publication of paid comments or paid articles without mentioning the names of all other candidates with equal prominence, which is the correct interpretation of Sec. 12(F) of R.A. No. 6132, the same renders moot and academic the petition in G.R. No. L-32551. Consequently, We cannot declare as unconstitutional that portion of paragraph 6 of Comelec Resolution No. RR-724 as amended by Comelec Resolution No. RR-739, which reads thus:.
(6) Outside of the Comelec Space, ... it shall be unlawful for any newspaper, magazine or periodical 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 the other candidates in the district in which the candidate mentioned is running are also mentioned with equal prominence. ...
In G.R. No. L-32546, petitioner insists on his challenge that Sec. 12(F) of R.A. No. 6132 is unconstitutional, because it unduly abridges the freedom of expression of an individual, whether candidate or not.
Freedom of expression is not immune to regulation by the State in the exercise of its police power. The validity of the abridgment is gauged by the extent of its inroad into the domain of the liberty of speech and of the press, when subjected to the applicable clear-and-present danger rule or the balancing-of-interests test. If the restriction on the invaded freedom is so narrow that the basic liberty remains, then the limitation is constitutional.1
It should be first stressed that, as long as the publisher is juridical person or an organized group of persons of whatever nature, whether in the business of publishing a newspaper, magazine or periodical only for this particular election or not, any advertisement or article published by a publisher for or against any candidate, paid or unpaid by said publisher, is prohibited as an organized group support under paragraph 1 of Sec. 8(a) of R.A. No. 6132.
Paragraph F of Sec. 12 reads thus:.
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 to 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.
Said paragraph F contemplates the following situations:
I. With or Without Comelec Space.
1. Any advertisement, paid comment or paid article by the candidate or by a non-candidate who is a natural person, published in a newspaper, magazine, or periodical for or against a candidate, or mentioning the name of any candidate, and the fact of his candidacy, must mentioned the names of all other candidates in the same district with equal prominence, in order that such publication will not fall under the ban.
2. With respect to unpaid comments or unpaid articles, published in any newspaper, magazine, or periodical, the names of all the other candidates need not be mentioned.
II. If Comelec Space is obtained in a Newspaper, Magazine or Periodical —.
1. That Comelec space must be allocated by the Comelec "equally and impartially among all candidates within the areas in which the newspapers are circulated," free for all such candidates.
2. Outside said Comelec space, any advertisement, paid comment or paid article by any candidate or non-candidate who is a natural person, and published in the same or another newspaper, magazine or periodical, for or against a candidate or mentioning the name of any candidate and the fact of his candidacy, must mention all the names of all the other candidates in the same district with equal prominence, to remove the same from the operation of the prohibition.
3. Any unpaid comment or unpaid article of the same nature or content published in any newspaper, magazine, or periodical need not mention the names of all the other candidates.
The expenses for such comment or article incurred by the candidate or by any other person with the knowledge and consent of the candidate, shall be counted as part of the amount of thirty-two thousand pesos (P32,000.00), the maximum total fixed by the law which the candidate can lawfully spend for his candidacy. (see par. G of Sec. 12)
Under the challenged paragraph F of Sec. 12, the moneyed candidate or individual who can afford to pay for advertisements, comments or articles in favor of his candidacy or against the candidacy of another or which mention his name and the fact of his candidacy, is required to mention all the other candidates in the same district with equal prominence to exempt him from the penal sanction of the law. The evident purpose of this 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. Neither it is true that the mere mention of the poor opponent in the same advertisement or paid article does not by itself alone engender per feet equality of chances; at least the chance of the poor candidate for victory is improved because thereby his name will be exposed to the reading public in the same article as that of the wealthy candidate.
The same is true with respect to the candidate who can afford to pay only for an advertisement or comment or article in his favor, and is without funds for the additional space needed to accommodate the names of the other candidates.
If the wealthy candidate or the one who can afford only to meet the campaign expenses for his own candidacy alone, is discouraged thereby to pay for any campaign advertisement, comment or article in his favor, then the parity of chances in winning the election among the poor, the not so poor and the rich candidates is further enhanced.
But the restriction in the challenged paragraph F of Sec. 12, is only one of the measures devised by the law to preserve suffrage pure and undefiled and to achieve the desired equality of chances among all the candidates.
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.
More than compensating for the minor limitation on the freedom of expression of an individual delineated in Sec. 12(F), R.A. No. 6132 affords him several facilities and other forms of assistance by which he can fully exercise his freedom of expression, including freedom of assembly, namely:.
1. Section 50-B of the Revised Election Code as amended by R.A. No. 4880 limiting the period of election campaign shall not apply to the election of delegates (Sec. 6[B]);
2. Each candidate is entitled to utilize for his campaign all the members of his family within the fourth civil degree of consanguinity or affinity;
3. Each candidate can employ a personal campaign staff composed of one for every ten precincts in his district;
4. Each candidate cannot be refused a permit to hold a public meeting on the ground that the provisions of this paragraph a, Sec. 8, may be violated;
5. Any member of any political party, organization or organized group of whatever nature, acting individually, can campaign for or against any candidate;
6. All organizations or organized groups of whatever nature are allowed to disseminate information or advocate constitutional reforms or proposals, which may be the same constitutional reforms or proposals advocated by the candidate, without of course mentioning the candidate directly or indirectly (Sec. 8 [a] par. 1, R.A. 6132);
7. A Comelec billboard in every city, municipality, municipal district and barrio of sufficient population density to be allocated by lottery by the Comelec equally and impartially among them;
8. Comelec time from each radio broadcasting and television station at least one hour but not more than two hours at least once a week also to be allocated by lottery by the Comelec equally and impartially among the candidates within the area of coverage of said station;
9. A candidate may appear on any interview or program in any radio broadcast or television or movie house or theater, provided all the other candidates are also invited to appear; and
10. News coverage by the mass media of significant or newsworthy events, views, public meetings or rallies involving any candidate in any news program, newsreel, newspaper, magazine, or other periodicals is allowed. (see pars. A, B, C, E and H of Sec. 12)
To implement the foregoing facilities and to increase the chances of the poor candidate as against the wealthy opponent as well as to insure free, orderly and honest election, in addition to the penal sanctions provided for in the Revised Election Code, R.A. No. 6132 prohibits, with penalties:.
1. Political party or organized group support, whether material or otherwise (par. 1 of Sec. 8[a]);
2. The head of any executive department, bureau or office, official or officer nominated or appointed by the President of the Philippines, head or appointed officer of any government-owned or controlled corporation, from giving support directly or indirectly, material or otherwise for or against any candidate (par. 2 of Sec. 8[a] );
3. Any public officer, head, official or appointing officer, or body of a government office, agency or instrumentality including corporations and enterprises owned or controlled by the government, or any employer or officer of a commercial, industrial, agricultural, economic or social enterprise; or any private person or private corporation or association; or any head, minister, officer, or authority of any religion, religious, fraternal, civic or social organization, directly or indirectly, from coercing any of their subordinates, employees, tenants, members, affiliates, parishioners, or followers, as the case may be, to aid, campaign, vote for or against any candidate, which coercion may include (emphasis supplied):.
(1) punishing or threatening to punish with dismissal, expulsion, ejectment, excommunication, transfer, reduction in wage, salary or compensation;
(2) preventing or unduly interfering with the performance of duty or work, or exercise of the freedom of worship; and
(3) other forms of penalties or reprisal, as the case may be (Sec. 8[b]);
4. Except upon prior written authority of the Comelec after due notice and hearing, any head, official, or appointing officer of the government, office, agency or instrumentality whether national or local, including corporations and enterprises owned or controlled by the government, from appointing or hiring any new employees, whether provisional, temporary or casual, or from creating and filling up any new position within forty-five days before the election. The Comelec can grant the authority to appoint new employees to fill up new positions only when the position is essential to the proper functioning of the office or agency concerned and it shall not be filled in a manner that may influence the election (Sec. 8[c], emphasis supplied);
5. Release or disbursement of any funds by any government official including barrio officials within forty-five days before the election, whether for public works, for the DSW or for the Presidential Arm on Community Development or any other office performing similar functions except for salaries of personnel or for routine and normal expenses (Sec. 8[d]);
6. During the period of forty-five days before the election:.
(1) any person (a) from making reference to releases of public funds or barrio development funds, (b) from undertaking construction of public works with the materials or equipment procured before the forty-five day period, or (c) from making deliveries of materials for public works purchased before the prohibited period, for the purpose of influencing voters; and
(2) any government official from giving or promising to give any increase or salaries or remuneration or privileges to any government official or employee, including those in the government-owned or controlled corporations; and
(3) any government-owned or controlled corporation from giving or causing to be given and/or from contributing or causing to be contributed any sums of money for any charitable, religious or social cause whatsoever (Sec. 8[e]);
7. During the period beginning thirty days before the election and ending thirty days thereafter, any member of the Armed Forces of the Philippines, the Philippine Constabulary, Special Forces, Home Defense Forces, Barrio Self-Defense Units and all other para-military units, from wearing his uniform or bearing arms outside the camp, garrison, or barracks or their homes in case of the para-military units without authority from the President of the Philippines or the Comelec (Sec. 8[f]; and
8. Any member of the security or police organizations of any government office or agency or government-owned or controlled corporations, or privately-owned or operated security, investigative, protective or intelligence agencies, from wearing his uniform or making use of his insignia, decorations or regalia or bearing arms except within the immediate vicinity of his office, corporation or agency during the prohibited period (Sec. 8[g]).1äwphï1.ñët
Furthermore,
9. Any person who publicly bears arms or publicly makes use of uniforms or insignia in violation of the law anywhere during the period of prohibition can be arrested by a peace officer or by a private person even in the absence of the circumstances provided by Rule 113, Sec. 6 of the Rules of Court (Sec. 9, par. 1);.
10. Any person who publicly carries a firearm and actually threatens voters to vote for or against any candidate or not to vote at all, or prevents the Chairman or member of the Election Registration Board, the Board of Inspectors or the Board of Canvassers, or a duly appointed watcher from freely performing his duties shall be guilty of serious election offense and can be arrested as aforestated (Sec. 9, par. 2)
11. The Director of Prisons, the Provincial Warden, the Keeper of the Jail and any person required by law to keep prisoners, who shall illegally order or allow any prisoner to leave the premises or jail sixty days before and thirty days after the election for the purpose of terrorizing or intimidating any voter or election official or watcher shall be penalized with prision mayor in its maximum period, and the prisoner committing such act of intimidation, terrorism or interference shall be sentenced to life imprisonment (Sec. 10, R.A. 6132);
12. No candidate can avail of the franking privilege, and no government official can use or extend such privilege in favor of or against any candidate (Sec. 12[D]);
13. No candidate can utilize paid forms of propaganda other than the Comelec billboards and Comelec time (Sec. 12 [E]);
14. No radio broadcasting or television station, movie house or theatre can show, display or give any advertising or propaganda to any candidate (Sec. 12[E]); and
15. No radio broadcasting and television station can schedule any program or permit any sponsor to manifestly favor or oppose any candidate by unduly referring to him or including aim in its programs or newscasts (Sec. 12[H]).
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 his freedom of expression itself.
The questioned ban on Sec. 12(F) is even less restrictive than the prohibitions in R.A. 4880. This Court —.
(1) unanimously upheld as valid the provision in said Republic Act 4480 limiting the period for nomination of candidates of any elective public office voted for at large earlier than 150 days immediately preceding an election, and for any other elective public office earlier than 90 days immediately preceding an election;
(2) by six votes sustained the constitutionality of the provision of the same law limiting the period for the conduct of an election campaign or partisan political activity, even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party; and (c) giving, soliciting, or receiving contributions for election campaign either directly or indirectly (Sec. 50-B, pars. [a], [b], and [c], R.A. 4880); and
(3) because four Members dissented, failed to declare as unconstitutional the limitation on the period for (a) making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office, (b) publishing or distributing campaign literature or materials, and (c) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) and, (e) of R.A. 4880.2
As heretofore stated, Sec. 6(B) of R.A. 6132 expressly excludes the application of Sec. 50-B of R.A. No. 4880 limiting the period of election campaign to the election of delegates to the Constitutional Convention.ℒαwρhi৷ Sec. 12(F) does not limit the period of campaign. And as a matter of fact, under par. 1 of Sec. 8(a) any individual, whether a member of a political party or organized group or not, can campaign for or against any candidate as long as he does so as an individual and not as a member of such party or organized group.
If the aforementioned limitations in R.A. 4880 were deemed valid restrictions on the due process clause, freedom of expression, freedom of association, right to equal protection of the laws and freedom of peaceful assembly, a fortiori the less narrow or less restrictive inhibition embodied in Sec. 12(F) of R.A. 6132 should survive the constitutional test.
Just recently, Five Members of this Tribunal upheld the validity of paragraph 1 of Section 8(a) of R.A. No. 6132, prohibiting any political party or any organization or any organized group of whatever nature, from giving aid or support, directly or indirectly, material or otherwise, for or against a candidate; while Six Members sustained the constitutionality of the prohibition against such support from political parties only.3 The ban in said par. 1 of Sec. 8(a) is, We believe, more restrictive than the limitation contained in Section 12(F).
Hence, consistent with our opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs. Comelec,4 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.
Special recognition should be made of the circumspection with which Congress couched the limitation in par. F of Sec. 12, revealing its deep respect for the freedom of expression guaranteed in the Bill of Rights. It should be noted that Congress did not impose on the publishers of newspapers, magazines and periodicals the duty to allocate for free a Comelec space in their newspapers, magazines or periodicals, but merely required the Comelec to endeavor to acquire such free Comelec space for the benefit of all the candidates. Congress thereby realized that to compel the publishers to provide free Comelec space would be an undue abridgment of the publisher's own freedom.
Under the guarantee of free expression, the candidate who pays for a comment or an article has the duty not only to inform the electorate about his qualifications and proposals for constitutional reforms, but also to inform truthfully the public who his opponents are, so that the public or particularly the electorate can determine the truth and merit of his claims vis-a-vis those of the other candidates. Otherwise, the candidate will be guilty of gross and unpardonable deceit on the people. This duty on the part of the candidate was underscored by John Milton in his stirring rhetorical denunciation of the suppression of truth as he appealed for "the liberty to know to utter and to argue freely according to conscience, above all liberties"5 (emphasis supplied). The same duty was stressed by Mr. Justice Murphy speaking for the American Supreme Court in Thornhill vs. Alabama6 when he delineated the contours as well as facets of the freedom of expression as "the freedom to publish publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment" (emphasis supplied).
The candidate, to enjoy the freedom, therefore has the concomitant duty to campaign for himself truthfully according to his conscience.£A⩊phi£ If he is not truthful, he forfeits the freedom. His freedom of expression is not and should not be limited to his own personal right to know the truth of the claims of the other candidates. A candidate is prone to exaggerate his personal merits or qualifications. He invariably claims qualifications superior those of his opponents. One test of the truth of his own pretensions as against those of his opponents is to require him to mention the names of the other candidates so that the electorate will know how to judge all the candidates. If the candidate omits the names of his opponents he is guilty of deception, which nullifies his right to enjoy the liberty he invokes for himself. At any rate, he usually mentions his opponents in an oral harangue. He must likewise do so in printed propaganda, so that the voter can decide who is the better man who can best represent in the constitutional convention their interests and articulate their longings and aspirations for an abundant life. The intrinsic merit of the candidate as a person and of his proposed amendments, not his wealth or lack of it, must be decisive.
Gauged by the more liberal "balancing-of-interests test," We must exercise judicial restraint in passing upon the statute challenged as unconstitutionally encroaching upon the realm of free expression and hearken to the caution pronounced by Mr. Justice Frankfurter in his concurring opinion in Dennis vs. U.S. that "free speech cases are not an exception to the principle that we are not legislators, that direct policy-making is not our province. How best to reconcile competing interests is the business of the legislature and the balance they strike is a judgment not to be displaced by ours, but to be respected, unless outside the pale of fair judgment."7
We cannot with justification pontificate that the limitation contained in Sec. 12 (F) of R.A. 6132 is not a reasoned and reasonable judgment on the part of Congress, which is also the ultimate guardian(s) of the liberties and welfare of the people in quite as great a degree as the Courts." 8
The Constitution and the statutes are merely instruments of the sovereign people in their incessant quest for security and the good life. There is no permanent sovereign talisman that will work magic to usher in the longed for Utopia of Sir Thomas More or the Shangrila of James Hilton or the City of God of St. Augustine. Man, at best, can only approximate, for the human mind is finite and imperfect.
Once adopted, the Constitution and the statutes are not to imprison forever in their cast the sovereign people, even though these organizations no longer serve the people nor their welfare.ℒαwρhi৷ On this planet Earth, in the epigrammatic language of Mr. Justice Holmes, than whom greater love that no man for civil liberties, without in any way withholding reverence for dogmas cherished as eternal verities by any church or the moral code, the theory of our Constitution is that "it is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophesy based upon imperfect knowledge. 9
Because "time has upset many fighting faiths" in the apt words of Mr. Justice Holmes,10 the State must ever be resilient and continuously devise measures to meet the protean complexities of the present and future generations.
The agency of the State in fashioning instruments to generate the greatest good for the greatest number under our present political system is Congress, as a constituent assembly together with the electorate in the formulation of the organic law, or Congress with the President in the exercise of its ordinary law-making power for the enactment of statutes designed to solve the problems that urgently press for panaceas. In either case, as we march towards the millenium the process that is followed is essentially empirical, pragmatic and utilitarian — whatever social, political, economic, legal or ideological philosophers may be employed as starting points. For as Mr. Justice Wisconsin of the Wisconsin State Supreme Court said: "The political or philosophical aphorism of one generation is doubted by the next, and entirely discarded by the third. The race moves forward constantly, and no Canute can stay its progress."11
WHEREFORE, the prayers of the petitions in those two cases are hereby denied and paragraph F of Section 12, R.A. No. 6132 is declared valid and constitutional.
Dizon, J., concurs.
Footnotes
1 Imbong vs. Comelec, L-32432, and Gonzales vs. Comelec, L-32443, Sept. 11, 1970; Gonzales vs. Comelec, L-28783, Apr. 18, 1969, 27 SCRA, pp. 835, 858, 860-861.
2 Gonzales vs. Comelec, L-28783, Apr. 18, 1969, 27 SCRA, 835, 865-870.
3 Imbong vs. Comelec, supra; Gonzales vs. Comelec, supra.
4 L-32432 & L-32443, Sept. 11, 1970.
5 Milton's Aeropogiticia cited by Justice Laurel in Planas vs. Gil., 67 Phil., 62, 81.
6 310 U.S. 88.
7 341 U.S., 494, 524-525.
8 Missouri, etc. vs. May, 194 U.S. 267, 270.
9 Abrahams vs. U.S. 250 U.S. 616, 631.
10 Ibid.
11 Borgnis vs. Falk Co., 133 N.W. 209, 215.
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