G.R. No. L-32546 - Dissenting Opinion

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]

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., petitioner,
vs.
JAIME N. FERRER, Chairman, CESAR MIRAFLOR, and LINO M. PATAJO, MEMBERS, Commission on Elections, respondents.

There is much to be said for the opinion of the Court penned by Justice Makasiar. Its high standard of craftsmanship is evident even at a most cursory glance, notable as it is for the ease with which the authoritative doctrines are marshalled and made to do service for the particular approach pursued. It is to be admitted that the line of argumentation followed in support of the decision reached cannot be presented in a manner more formidable or compelling. Nonetheless, with due respect to the majority of my brethren and with regret, I am constrained to dissent because, to my mind, the rigorous and exacting standard for permissible limitation on free speech and free press, the clear and present, danger test, has not been met. Such a task, difficult enough at best, is not lightened by the undeniable fact that what is sought to be restricted under the challenged provision of the Act is the right to disseminate political information. As such it enjoys a much greater immunity under our constitutional regime. Hence, this dissenting opinion.

1. Specifically this is a dissent from the decision reached by the Court sustaining the constitutionality of this portion of Sec. 12(f) of the 1971 Constitutional Convention Act: "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 mentioned is running are also mentioned with equal prominence." I cannot resist the conclusion that, on its face, there is an abridgment of press freedom contrary to the mandate of the Constitution.

Considering that the publication of news items depends on the editorial policy of every paper and that a candidate like petitioners may not be in that coterie of personalities in the good graces of columnists, the only way he may be able to obtain press publicity is through advertisements. Thereby, on such paid space, he could acquaint the electorate with his personal worth, list whatever achievements in his opinion entitle him to aspire for the position of delegate, outline his program if any, and reveal his plans and his hopes. His right to press freedom entitles him to choose which paper to carry his advertisement, when it is to be published, its size and format, and what to say therein. If he is prevented from doing so, there is an abridgment. If he is precluded from mentioning facts and whatever opinion he wishes to disseminate, there is an abridgment. If according to the statute, he could do so only upon the inclusion therein of the names of all the other candidates, then there is equally an abridgment. It is bad enough to be restrained from, expressing what one is minded to; it is infinitely worse if he were compelled to include in an advertisement that he pays for matters he does not believe should be there, upon pain of his not being allowed to publicize himself in that manner. The abridgment is obvious, palpable and real. The Constitution in express terms forbids it. The challenged provision requires it. For me the repugnancy is plain; the contrariety indisputable. The next question is whether it can, in the light of the above, stand the constitutional test.

2. Justice Laurel, as committee chairman on the proposed bill of rights in the Constitutional Convention, stressed the significance of freedom of expression as a political right. For without the free press and free speech guarantees, one may not effectively make use of his prerogative in the choice of the public officials in whom the power to govern is vested.1 Its indispensability for a free society, he underscored by reference to the Stromberg opinion, penned by the then Chief Justice Hughes of the United States Supreme Court, wherein it was emphasized: "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the 14th Amendment." 2

As a matter of fact, there is a school of juristic thought in the United States that would not countenance the least diminution of freedom of expression when availed of as a political right. The most noted advocate of that approach in the American scene was the late Alexander Meiklejohn. In his exposition of the First Amendment to the United States Constitution, containing these vital safeguard of freedom of speech, freedom of the press, freedom of assembly and freedom of religion, he pointed out: "When men govern themselves, it is they — and no one else — who must pass judgment upon unwisdom and unfairness and danger. And that means that unwise ideas must have a hearing as wise ones, unfair as well as fair, dangerous as well as safe, un-American as well as American. Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism be ill-considered, ill-balanced planning for the general good."3 He continued: "The principle of the freedom of speech springs from the necessities of the program of self-government. It is not a Law of Nature or of Reason in the abstract. It is a deduction from the basic American agreement that public issue shall be decided by universal suffrage."4 He concluded with this ringing affirmation: "To be afraid of ideas, any idea, is to be unfit for self-government. Any such suppression of ideas about the common good, the First Amendment condemns with its absolute disapproval. The freedom of ideas shall not be abridged."5

Reference may likewise be made to the credo of Justice Black of the United States Supreme Court as set forth in his Carpenter lectures in Columbia Law School in 1968. As was emphatically asserted by him: "My view is, without deviation, without exception, without any if but, or whereas that freedom of speech means that government shall not do any-thing to people, or, in the words of the Magnified Carta move against people, either for the views they have or the views they express or the words they speak or write. Some people would have you believe that this is a very radical position, and maybe it is. But all I am doing is following what to me is the clear wording of the First Amendment that "Congress shall make no law ... abridged the freedom of speech or of the press." These words follow Madison's admonition that there are some powers the people did not mean the federal government to have at all. As I have said innumerable times before I simply believe that "Congress shall make no law" means Congress shall make no law. Obviously the way to communicate ideas is through words, and I believe that when our Founding Fathers, with their wisdom and patriotism, wrote this Amendment, they knew what they were talking about. They knew what history was behind them; they were familiar with the sad and useless tragedies of countless people who had their tongues plucked out, their ears cut off or their hands chopped off, or even worse things done to them because they dared to speak or write their opinions. They wanted to ordain in this country that the new central government should not tell the people what they should believe or say or publish."6

Justice Douglas, also of the United States Supreme Court is on the side of those maintaining a well-nigh absolutist position. In his North Foundation lectures of 1958, he stressed: "Freedom of expression is a necessary political right once the people have the full right of sovereignty. It is indeed the only guarantee that the people will be kept adequately informed to discharged the awesome responsibilities of sovereignty. Without freedom of expression, only some public issues might be canvassed. Without it, the nation might drift to a pattern of conformity that loses all relation to the world and its large affairs."7 Then, again: "The First Amendment should give the widest possible protection to the expression of political views. In a democratic society, the expression of a political point of view takes on its greatest significance in connection with the election campaign." 8

3. Let there be no misunderstanding. I am not prepared to subscribe to such an absolutist view. All that this dissent seeks to stress is that even if properly subject to limitation under the clear and present danger test, the challenged provision, to my mind, cannot free itself of what for me is the constitutional infirmity apparent on its face.

It is not to be lost sight of that with due recognition of its importance for the political process, not to mention the dignity of the human personality, Laurel made clear that such rights are not absolute. It would be too much to insist that at all times and under all circumstances, they should remain unfettered and unrestrained. Where does the limitation lie? For him, it was supplied by Justice Holmes of the American Supreme Court, who enunciated the clear find present danger principle as the criterion for permissible restriction. Thus: "The question in every case is whether the words used in such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 9

The clear and present danger doctrine has found acceptance outside of this case in our decisions in the following Primicias v. Fugos,10 American Bible Society v. City of Manila,11 Cabansag v. Fernandez,12 Vera v. Arcas,13 Navarro v. Villegas,14 and Imbong v. Ferrer.15 In another case, Gonzalez v. Commission 16 with four justices concurring in the result as for them the suit was moot and should have been dismissed two of the four opinions written stressed its applicability.17

4. For the majority, there is a clear and present danger of the substantive evil that unless such a requirement is imposed on those who would 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, an aspirant, whether because of the wealth at his command or of his supporters being men of affluence, could utilize such means to overwhelm his opponents with printed matter favorable to his candidacy. The evil feared is substantial and if it could be met, it should be met by legislation which is not at war with the constitutional command against the abridgment of press freedom. I believe it has been met, for, as noted by the majority, there is a limitation of P32,000.00 on the expenses that could be lawfully incurred by any candidate. That way, at least, there could be no plausibility to the allegation of its being tainted with unconstitutionality. It would likewise serve the purpose.

In the challenged provision, however, it is the right to determine what the advertisement, the paid comment or the paid article should contain which, to repeat, infringes on one's free choice as to what to publish or not to publish. Since the evil has been provided for, it would appeal to me that there is no occasion to invoke clear and present danger principle. A quotation from the opinion of the author in Gonzales v. Comelec referred to by the majority may be permissible. Thus: "It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. For precision of regulation is the touchstone in an area so closely related to our most precious freedoms."18 While not precisely in point, the above principle suggests that a purpose clearly legitimate may be attained by a regulation that does not in any wise curtail press freedom.

5. That, for me, is to emphasize further the point stressed in my opinion in the Gonzales case that the clear and present danger test affords the most ample protection to freedom of expression. Additional quotations therefrom would not then be inappropriate under the circumstances. It would serve to place in its proper perspective why the Gonzales opinion insofar as it reflects the views of the writer of this dissent cannot be relied upon for a tolerant and sympathetic approach to any legislative curtailment of freedom of thought. It was therein made clear: "The majority of the Court is thus of the belief that the ban on the solicitation or undertaking of any campaign or propaganda, whether directly or indirectly, by an individual, the making of individual announcements or commentaries or holding interview for or against the election for any party or candidate for public office, or the publication or distribution of campaign literature or materials, suffers from the corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality."19 For the majority of the Court in the Gonzales case then, the above practices prohibited by the Tañada-Singson Law do not meet the constitutional test. As categorically stated in such opinion: "More specifically, in terms of the permissible scope of legislation that other could be justified under the clear and present danger doctrine, it is the considered opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine."20 That was why the writer of this dissent, along with six of his colleagues, felt "compelled to view the statutory provisions in question as unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of the mind."21

6. It is not to be lost sight of that the opinion of the Court is not lacking in awareness of the high estate accorded freedom of expression in the constitutional scheme.ℒαwρhi৷ The familiarity with precedents both from this jurisdiction and abroad to that effect is quite evident. There are even portions thereof that gives rise to hopes, not entirely without warrant, that the outcome would have been different, that there would be a declaration of the invalidity of the challenged provision. That the result reached is precisely the opposite is a tribute to the dexterity and ease with which the controlling force of authoritative doctrines was blunted. It also not implausibly calls to mind Byron's Julia who "whispering "I will ne'er consent" consented."

7. The opinion of the Court would invoke one of the justly-famed aphorisms of Justice Holmes in his classic Abrams dissent about the Constitution being "an experiment, as all life is an experiment"22 For him, then, every year "if not every day we wager our salvation upon some prophecy based upon imperfect knowledged."23 The quotation went no further. It is understandable why. The very next sentence of Holmes puts a different complexion on the matter. It supplies, to my mind, the fitting and appropriate approach to the disposition of the problem before us. In the inimitable Holmes style: "While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinion that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the law and pressing purposes of the law that an immediate check is required to save the country."24

8. From the above aphorism of Holmes, my brethren would fashion their "articulate major premise." As expressed in the opinion of the Court: "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 philosophies may be employed as starting points." If I do not misread its implications, it would seem that it would accord much more weight to the legislative judgment even when challenged as violative of constitutional rights than it is entitled to. I am not prepared to go along.

9. That would be, for me, to pay less than full respect to the sweeping command embodied in the constitutional mandate on intellectual liberty. Freedom of expression ranks high in the hierarchy of legal values. It occupies a preferred position.25 It is intolerant of attempts at evasion whether by accident or through design. It cannot allow any dubious intrusion. While not illimitable then, courts must ever be on the alert lest on a mere suspicion, even if not without foundation, that there exists a clear and present danger of a substantive evil, that it assures is in effect nullified. It would follow then that where legislation touches the sensitive area of free speech and free press, a departure from the operation of the presumption of validity that attaches to all enactments, especially so where property rights alone are curtailed, does not call for automatic condemnation. Where the constitutional infirmity of the challenged statute may be discerned from a reading thereof, the burden of disproving that there is no unconstitutional taint falls on the shoulders of those disposed to uphold it. Where there exists a reasonable apprehension of a trespass on the forbidden domain of free speech and free press, the deference that is due the judgment of a coordinate branch must yield to the supremacy that at all times must be accorded to what the Constitution in plain and explicit language ordains.

Hence, with due recognition of the merit that is intrinsically possessed by the learned and exhaustive opinion of Justice Makasiar and with a reiteration of my regret that I am unable to perceive things the way my brethren would view them, I must dissent.