G.R. No. 132231 - Dissenting Opinion

G.R. No. 132231, March 31, 1998,
♦ Decision, Romero, [J]
♦ Concurring Opinion, Puno, [J]
♦ Concurring Opinion, Vitug, [J]
♦ Dissenting Opinion, Panganiban, [J]
♦ Dissenting Opinion, Romero, [J]

EMILIO M. R. OSMEÑA and PABLO P. GARCIA, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

The Court, by a majority vote, decided to uphold the ban on political advertising, as provided, under Section 11(b)1 of RA 6646, and to reiterate the 1992 ruling in National Press Club vs. Comelec2 for two main reasons:

With all due respect, I disagree with the majority's view and join the stirring Dissenting Opinions of Justices Hugo E. Gutierrez, Jr.,3 Isagani A.

Cruz4 and Edgardo L. Paras5 in NPC vs. Comelec, and of Justice Flerida Ruth P. Romero in the present case. I will no longer repeat their cogent legal arguments.ℒαwρhi৷ Let me just add my own.

The majority argues that the ad ban is pro-poor, because it prevents the rich from buying media time and space which the poor cannot afford or match. This argument assumes that media advertising is expensive and, thus, beyond the reach of the poor.

I respectfully submit that such argument is bereft of factual basis. True, a full-page ad in a major broadsheet6 may be priced at about P100,000; a 30-second commercial in a major television channel,7 anywhere from P15,000 to P90,000 depending on the time and the program; while air time of an equal duration in a leading radio station, anywhere from P300 to P4,500.8 But even with such price tags, media ads are not necessarily expensive, considering their nationwide reach, audience penetration, effectiveness and persuasive value.

Realistically, expenses are involved in a candidacy for a national office like the presidency, the vice presidency, and the senate. In recognition of this, the law has limited campaign expenditures to ten pesos (P10) for every voter in the case of candidates for president and vice president, and three pesos (P3) per voter in their constituencies, for other candidates.9 Anyone — whether rich or poor — who aspires for such national elective office must expect to spend a considerable sum, whether of his own or from allowable donations, to make himself and his platform or program of government known to the voting public.

While a one-page black-and-white ad in a major daily costs about P100,000, it is replicated, however, in about 250,000 copies 10 circulated to an equal number of offices and households nationwide on the very same day of its publication. Each newspaper copy has an average readership of six. Hence, the ad is exposed to about 1.5 million (250,000 x 6) people all over the country. Consider, too, that people discuss what they read while they congregate in barber shops, corner stores, and other places where people gather. Sometimes, radio and TV broadcasters pick up and comment on what they read in newspapers. So, the reach, pass-on readership, multiplier effect and effectivity of a broadsheet ad are practically immeasurable.

On the other hand, let us consider the alternative of printing and distributing a poster or handbill of similar size. The actual printing cost of such handbill on newsprint is twenty centavos (P.20) per copy.11 The cost of P250,000 copies (the circulation of a major daily) would thus be P50,000 (250,000 x P.20). But that is only the printing cost. To disseminate these handbills nationwide on the same day of printing without the distribution network of a major newspaper is almost impossible. Besides, the cost would be horrendous. To approximate the circulation of a major newspaper, the most practical substitute would be the mails. Ordinary mail is now P4.00 per posting. Hence, the distribution cost through the mails would be P1 million (250,000 copies x P4.00). And this does not include the manual work and cost of sorting, folding and individually addressing these 250,000 pieces of mail matter. (This alternative assumes the availability of a mailing list equivalent to the reach of a newspaper.) Even if third-class mail is used, the distribution cost alone will still be P3.00 per individual mailing, or P750,000 for all 250,000 copies.12

This alternative is not only much more expensive but much less effective as well, because it has no guarantee of same-day delivery, has a diminished readership multiplier effect and is tremendously cumbersome in terms of sorting and distribution.

Furthermore, a candidate need not buy one-page ads. He can use quarter-page ads at one fourth the cost or about P25,000 only per issue.ℒαwρhi৷ To be effective in his ad campaign, he may need to come out once every three days (to be spread out among the different dailies) or 30 times during the 90-day campaign period13 for national candidates. Hence, he will spend, for the entire duration of the campaign, about P750,000 (P25,000 x 30). I repeat, to advertise a one-fourth page ad at least 30 times in various major dailies, a candidate needs to spend only P750,000 — an amount less than the alternative of printing and distributing nationwide ONLY ONCE a less timely and less effective equivalent leaflet or poster.

A similar detailed comparison of cost-benefit could be written for radio and television. While, at initial glance, the rates for these electronic media may appear high, still they could be proven more beneficial and cheaper in the long term because of their "value-for-money" appeal.14

From the foregoing, it is clear that mass media truly offers an economical, practical, and effective means by which a relatively unknown but well-qualified political candidate who has limited resources, particularly one running for a national office, may make known to the general public during the short campaign period15 his qualifications, platform of government, stand on vital issues, as well as his responses to questions or doubts about his capabilities, his character or any other matter raised against him. Deprived of media ads, the rich candidate, unlike his poor opponent, resorts to expensive propaganda — the holding of public meetings and rallies before large but oftentimes "paid" crowds, helicopter stops and motorcades spanning several towns and cities, the production of ingenious materials, giveaways and other products, and the incessant printing and distribution of various campaign paraphernalia. These forms of electoral promotion ineluctably require a large political machinery and gargantuan funds (organization + people/supporters + communication gadgets + vehicles + logistics). To combat this formidable and expensive election behemoth, the poor candidate's most viable alternative may be media advertising.

In NPC vs. Comelec, it was feared that the "unlimited purchase of print space and radio and television time . . .ℒαwρhi৷ by the financially affluent [was] likely to make a crucial difference." But I say such fear is unfounded. First, because campaign expenses are limited by law. Second, the possibility of the abuse and misuse of media ads by the "financially affluent" is not an argument in favor of their total withdrawal, for — to use the very words of the majority in NPC — "there is no power or authority in human society that is not susceptible of being abused."16 Third, the absence of access to media advertising totally deprives the poor candidate of his most formidable weapon in combating the "huge campaign war chests" of rich contenders.

THE POINT IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING SHOULD BE BANNED BECAUSE ONLY THE RICH CAN AFFORD IT OR, FOR THAT MATTER, THEY MAY ABUSE OR MISUSE IT. Quite the contrary, in terms of reach, pass-on readership, multiplier effect and cost-benefit advantage, media advertising may be the cheapest and most effective campaign mechanism available. I am not suggesting that every candidate should use media ads. In the final analysis, it is really up to the candidates and their campaign handlers to adopt such mode and means of campaigning as their budgets and political strategies may require.16a What I am stressing is that candidates, whether rich or poor, should be given the option of campaigning through media, instead of being forced to use other forms of propaganda that could turn out to be less effective and more expensive.

I now come to the second major point. The majority rationalizes the ad ban by saying that it has a very limited duration and scope and that, in any event, the Comelec's grant of free media time and space to candidates more than makes up for the violation of their constitutional right. I disagree.

The ad ban is constitutional because, according to the majority, it is limited in duration for the reason that it is enforced only during the election period. In my humble view and with all due respect, this is both erroneous and illogical. A political advertisement is relevant only during the campaign period — not before and not after. As petitioners put it, a ban on mountain-skiing during the winter season cannot be said to be limited in duration, just because it is enforced during winter. After all, skiing is indulged in only when the mountains slopes are covered with snow. To add a further parallel, a ban against the planting of rice during the rainy season is not limited simply because it covers only that season. After all, nobody plants rice during summer when the soil is parched. In the same manner, campaign ads are not resorted to except during the campaign period. And their prohibition does not become any less odious and less comprehensive just because the proscription applies only during the election season. Obviously, candidates need to advertise their qualifications and platforms only during such period. Properly understood, therefore, the prohibition is not limited in duration but is in fact and in truth total, complete and exhaustive.

The majority also claims that the prohibition is reasonable because it is limited in scope; that is, it refers only to the purchase, sale or donation of print space and air time for "campaign or other political purposes," and does not restrict news reporting or commentaries by editors, columnists, reporters, and broadcasters. But the issue here is not the freedom of media professionals.17 The issue is the freedom of expression of candidates. That the freedom of the press is respected by the law and by the Comelec is not a reason to trample upon the candidates' constitutional right to free speech and the people's right to information. In this light, the majority's contention is a clear case of non sequitur. Media ads do not partake of the "real substantive evil" that the state has a right to prevent18 and that justifies the curtailment of the people's cardinal right to choose their means of expression and of access to information.

Besides, what constitutes "campaign or other political purposes"? Neither RA 6646 nor the majority provides an explanation. If candidates buy 30 column-inches of newspaper space or one hour of prime radio/TV, time everyday, and if they retrain professional journalists to use such space/time to defend them from attacks and to promote their platforms of government, should such purchase be covered by the ad ban, or should it be allowed as an exercise of the freedom of journalists to express their views? Even more insidiously, should regular columnists' daily defense of their chosen candidates and daily promotion of their platforms of government constitute donated space for "campaign and other political purposes"?19

Finally, the majority opines that the grant of free Comelec media time and space to candidates more than makes up for the abridgment of the latter's right to buy political ads.20 With due respect, I believe this is hollow and shallow.

In its Compliance dated March 13, 1998, Comelec tell us that under its Resolution No. 3015, it gave due course to eleven candidates for president,21 nine for vice president,22 and forty for senator.23 It is claimed however that, all in all, there are really about 100,000 candidates running for about 17,000 national and local positions in the coming elections, from whom a voter is expected to choose at least 3024 to vote for. With so many candidates, how can the ordinary, sometimes nonchalant, voter ever get to know each of the political hopefuls from whom he will make an intelligent selection? In the crucial choice for president alone, how can ordinary citizens intelligently and sufficiently assess each of the 11 candidates in order to make a sensible choice for a leader upon whom to entrust the momentous responsibility of carving the country's path in the next millennium?

The Comelec answers these questions with Resolution No. 2983-A, promulgated on March 3, 1998, in which it asks "every radio broadcasting and television station operating under franchise [to] grant the Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily, to be known as 'Comelec time' effective February 10, 1998 for candidates for President, Vice President and Senators, and effective March 27, 1998 for candidates for local elective offices, until May 9, 1998," to be allocated "by lottery" among candidates requesting its use. But Comelec, in the same Compliance, informed the Court that "it is not procuring 'Comelec space' (in any newspaper) by virtue of the effects of the decision of this Honorable Court in the case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA 272."25