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.

Not wishing to be held hostage by Emerson's "hobgoblin," I dare to break away from a past position and encapsulize my ruminations in a dissenting opinion.

The majority, reiterating the 1992 decision NPC v. COMELEC, holds that Section 11(b) of R.A. 6646 is a reasonable restriction on the freedom of expression guaranteed by the Constitution.2 Our six-year experience with the ban on political advertisements, however, constrains me to dissent. While it is desirable, even imperative, that this Court, in accordance with the principle of stare decisis, afford stability to the law by hewing to doctrines previously established, said principle was never meant as an obstacle to the abandonment of established rulings where abandonment is demanded by public interest and by circumstances.3 Reverence for precedent simply as precedent cannot prevail when constitutionalism and public interest demand otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly. More pregnant than anything else is that the court should be right.4

I submit that our country's past experience in the 1992 and 1995 elections, as well as contemporary events, has established that Section 11(b) of R.A. 6646 falls short of the rigorous and exacting standard for permissible limitation on free speech and flee press.

In 1992, this Court, in NPC v. COMELEC, gave constitutional imprimatur to Section 11(b), pronouncing the same to be authorized by Article IX(C), Section 4 of the Constitution which reads:

Prefatorily, it must be borne in mind that Article IX(C), Section 4 of the Constitution, is essentially an express manifestation of the comprehensive police power of the State.

Police power, it has been declared often enough, rests upon public necessity and upon the right of the state and the public to self-protection. For this reason, its scope expands and contracts with changing needs.5 In the words of Mr. Justice Isagani A. Cruz:

Thus, when the temper and circumstances of the times necessitate a review, this Court should not hesitate to reverse itself, even on constitutional issues; for the legal problems with which society is beset continually cannot be merely considered in the abstract, but must be viewed in light of the infinite motley facets of human experience. As aptly stated by Mr. Justice Holmes, "The life of the law has not been logic: it has been experience."

By way of illustration, we first held, in the celebrated Flag Salute Case,7 that:

The Court further predicted that exempting Jehovah's Witnesses from participating in the flag ceremony would ultimately lead to a situation wherein:

Thirty-two years later, events caught up with the changing political climate, such that an undivided Court pronounced, in Ebralinag v. The Division Superintendent of Schools of Cebu8 that:

The Court held that its earlier prediction of dire consequences had not come to pass. It concluded that exempting Jehovah's Witnesses from attending flag ceremonies would not produce a nation "untaught and uninculcated in and not imbued with reverence for the flag and love of country, admiration for national heroes, and patriotism."

In much the same manner, in the early case of People v. Pomar,9 the Court struck down as violative of the freedom of contract, a statute prescribing a thirty-day vacation with pay both before and after confinement arising from pregnancy. The Court said:

Citing American cases that espoused the prevailing laissez faire doctrine, the Court ruled that the right to contract about one's affairs is a part of the liberty of the individual guaranteed by the due process clause. The Court also cited the "equality of right" principle, holding that "(i)n all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land . . . Police power, the Court conceded, is an expanding power; but it cannot grow faster than the fundamental law of the state . . . If the people desire to have the police power extended and applied to conditions and things prohibited by the organic law, they must first amend that law.10

Sixteen years later, the validity of the above pronouncement was rejected by the Court in Antamok Goldfields Mining Co. v. CIR,11 which rationalized its volte-face stance, thus: "(i)n the midst of changes that have taken place, it may likewise be doubted if the pronouncement made by this court in the case of People v. Pomar . . . still retains its virtuality as a living principle. The policy of laissez faire has to some extent given way to the assumption by the government of the right of intervention even in contractual relations affected with public interests."

Similarly, events subsequent to the Court's ruling in Avelino v. Cuenco12 impelled the Court to reverse its original position. In this case, the Court initially refused to take cognizance of the raging controversy to determine who was the rightful president of the Philippine Senate, ruling that in view of the separation of powers, the question was a political one not within its jurisdiction. Despite such a ruling, almost one-half of the members of the Senate refused to acknowledge Mariano Cuenco as the acting President, as a result of which legislative work came to a standstill. In the words of Justice Perfecto, "the situation has created a veritable national crisis, and it is apparent that solution cannot be expected from any quarter other than this Supreme Court. . . . The judiciary ought to ripen into maturity if it has to be true to its role as spokesman of the collective conscience, of the conscience of humanity." The Court, thus, assumed jurisdiction over the case, rationalizing that supervening events justified its intervention.

From the foregoing, it can be seen that the inexorable march of events, and the liberalizing winds of change may very well signal a needed shift in our conception of the permissible limits of regulation in the name of police power. Verily, while the validity of NPC v. COMELEC may have been etched on granite at the time of its promulgation, events subsequent thereto now call into question the very underpinnings of said ponencia. To my mind, the hoary maxim that "time upsets many fighting faiths" still holds true, and the Court must be ever resilient and adaptable in order to meet the protean complexities of the present and future generation.

This upends the familiar holding that "any system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity, with the Government carrying a heavy burden of showing justification for the enforcement of such a restraint."13 This presumption was even reiterated in the recent case of Iglesia ni Cristo v. CA,14 wherein we ruled that "deeply ensconced in our fundamental law is its hostility against all prior restraints on speech . . . Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. It is the burden of the respondent . . . to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down." NPC v. COMELEC, insofar as it bestows a presumption of validity upon a statute authorizing COMELEC to infringe upon the right of free speech and free press, constitutes a departure from this Court's previous rulings as to mandate its re-examination.

In this connection, it bears emphasis that NPC v. COMELEC was the product of a divided court, marked as it was by the strong dissents of Mr. Justices Cruz, Gutierrez, and Paras. This fact gains significance when viewed in light of the changes in the composition of the court. While a change in court composition, per se, does not authorize abandonment of decisional precedents, it is apropos to keep in mind the pronouncement by the Court in Philippine Trust Co. and Smith, Bell and Co. v. Mitchell.15 which reads as follows:

Are The Restrictions Imposed by Sec. 11(b) Of R.A.
6646 on Freedom of Expression Valid?

Preliminaries having been disposed of, we proceed to the crux of the matter. Freedom of speech has been defined as the liberty to know, to utter and to argue freely according to conscience, above all liberties. It thus includes, not only the right to express one's views, but also other cognate rights relevant to the free communication of ideas, not excluding the right to be informed on matters of public concern.

The Court, in NPC v. COMELEC, found the restrictions imposed by Section 11(b) on the freedom of expression, to be valid. First, the prohibition is limited in the duration of its applicability and enforceability to election periods. Precisely, this is what makes the prohibition more odious. It is imposed during the campaign period when the electorate clamors for more and accurate information as their basis for intelligent voting. To restrict the same only defeats the purpose of holding electoral campaigns — to inform the qualified voter of the qualifications of candidates for public office, as well as the ideology and programs of government and public service they advocate, to the end that when election time comes, the right of suffrage may be intelligently and knowingly, if not always wisely, exercised. Opening all avenues of information to the estimated 36.4 million voters is crucial for their intelligent exercise of the right of suffrage in the May 11 polls, considering that they will be voting for an average of thirty elective positions.16

Second, the prohibition is of limited application, as the same is applied only to the purchase and sale of print space and air time for campaign or other political purposes. "Section 11(b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or newsworthy events relating to candidates, their qualifications, political parties and programs of government." It does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth. To be sure, newspapers, radio, and television stations may not be restricted from reporting on candidates, their qualifications, and programs of government, yet, admittedly, the freedom of expression of the candidates themselves in the manner they choose to, is restricted. Candidates are thereby foreclosed from availing of the facilities of mass media, except through the filtering prism of the COMELEC.

Not to be overlooked is the stark truth that the media itself is partisan. In a study17 commissioned by the COMELEC itself to determine whether certain newspapers adhered to the principles of fairness and impartiality in their reportage of the presidential candidates in the 1992 elections, the results disclosed that newspapers showed biases for or against certain candidates. Hence, the contention that "Section 11(b) does not cut off the flow of media reporting, opinion or commentary about candidates, their qualifications and platforms and promises" simply is illusory. Editorial policy will always ensure that favored candidates receive prominent coverage while less favored ones will get minimal exposure, if at all. This underscores the need to give candidates the freedom to advertise, if only to counteract negative reporting with paid advertisements, which they cannot have recourse to with the present prohibition. Worse, the ban even encourages corruption of the mass media by candidates who procure paid hacks, masquerading as legitimate journalists, to sing them paeans to the high heavens. Wittingly or unwittingly, the mass media, to the detriment of poor candidates, occasionally lend themselves to the manipulative devices of the rich and influential candidates.

Finally, it is alleged that while Section 11(b) prohibited the sale or donation by mass media of print space or air time for campaign or other political purposes, COMELEC, by way of exception, was mandated to purchase print space or air time, which space and time it was required to allocate, equally and impartially, among the candidates for public office. Hence, whatever limitation was imposed by Section 11(b) upon the right to free speech of the candidates was found not to be unduly repressive or unreasonable inasmuch as they could still realize their objective as long as it was coursed through COMELEC. COMELEC it was that shall decide what, who, which media to employ and the time allocation for the candidates who signify their desire to avail of the agency's air time and print space. Why accord to COMELEC such powers in the name of supervision and regulation at the expense of the constitutionally hallowed freedom of expression?

Given the conditions then prevailing, the Court's ruling in NPC v. COMELEC may have been valid and reasonable; yet today, with the benefit of hindsight, it is clear that the prohibition has become a woeful hindrance to the exercise by the candidates of their cherished right to free expression and concomitantly, a violation of the people's right to information on matters of public concern. As applied, it has given an undue advantage to well-known popular candidates for office.

In the hierarchy of fundamental civil liberties, the right of free expression occupies a preferred position,18 the sovereign people recognizing that it is indispensable in a free society such as ours. Verily, one of the touchstones of democracy is the principle that free political discussion is necessary if government is to remain responsive to the will of the people. It is a guarantee that the people will be kept informed at all times sufficiently to discharge the awesome responsibilities of sovereignty.

Yet, it is also to be conceded that freedom of expression is not an absolute right. The right or privilege of free speech and publication has its limitations, the right not being absolute at all times and under all circumstances. For freedom of speech does not comprehend the right to speak whenever, however, and wherever one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled.19

Still, while freedom of expression may not be immune from regulation, it does not follow that all regulation is valid. Regulation must be reasonable as not to constitute a repression of the freedom of expression. First, it must be shown that the interest of the public generally, as distinguished from that of a particular class requires such regulation. Second, it must appear that the means used are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.

As to the first, in NPC v. COMELEC, this Court declared that the ban on political advertising aims to assure equality of opportunity to proffer oneself for public service by equalizing, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests."

While there can be no gainsaying the laudable intent behind such an objective, the State being mandated to guarantee equal access to opportunities for public service, the prohibition has had the opposite effect. Instead of "equalizing" the position of candidates who offer themselves for public office, the prohibition actually gives an unfair advantage to those who have had wide media exposure prior to the campaign period. Instead of promoting the interests of the public in general, the ban promotes the interest of a particular class of candidates, the prominent and popular candidates for public office. What is in store for the relatively obscure candidate who wants to pursue his candidacy? Eager to trumpet his credentials and program of government, he finds himself barred from using the facilities of mass media on his own. While incumbent government officials, show business personalities, athletes and prominent media men enjoy the advantage of name recall due to past public exposure, the unknown political neophyte has to content himself with other fora, which, given the limited campaign period, cannot reach the electorate as effectively as it would through the mass media. To be sure, the candidate may avail himself of "COMELEC Space" and "COMELEC Time," but the sheer number of candidates does not make the same an effective vehicle of communication. Not surprisingly, COMELEC Chairman Pardo, at the Oral Argument held by the Court en banc, admitted that no candidate has as yet applied for COMELEC air time and space.

More telling, the celebrities are lavished with broader coverage from newspapers, radio and television stations, as well as via the commentaries and expressions of belief or opinion by reporters, broadcasters, editors, commentators or columnists, as they are deemed more newsworthy by media, thus generating a self-perpetuating cycle wherein political unknowns, who may be more deserving of public office, campaign in relative obscurity compared to their more popular rivals. Instead of equalizing opportunities for public service, the prohibition not only perpetuates political inequality, but also invidiously discriminates against lesser-known candidates.

While Article IX(C), Section 10 of the Constitution provides that "(b)ona fide candidates for any public office shall be free from any form of harassment and discrimination," Article IX(C), Section 4 is nothing if not antithetical to the former provision as, in its application, it is productive of a situation wherein political neophytes are blatantly discriminated against. Much as we recognize the basic canon in Constitutional construction that the Constitution must be interpreted in such a way as to harmonize all its provisions if the Charter is to be construed as a single, comprehensive document and not as a series of disjointed articles or provisions, the predictable effect is for one provision to negate the other.

As to the second requisite, experience shows that the ban on political advertisements has not been reasonably necessary to accomplish its desired end. First, there are more than 70 provinces, more than 60 cities and more than a thousand municipalities spread all over the archipelago. Previous elections have shown that the ban on political advertising forces a candidate to conduct a nationwide whistle-stop campaign to attain maximum exposure of his credentials and his program of government. Obviously, this necessitates tremendous resources for sundry expenses indispensable for political campaigns, all within a limited period of 90 days. Given the enormous logistics needed for such a massive effort, what are the chances for an impecunious candidate who sincerely aspires for national office?

On the other hand, radio and television reach out to a great majority of the populace more than other instruments of information and dissemination, being the most pervasive, effective, and inexpensive. A 30-second television advertisement, costing around P35,000.00 at present rates, would, in an instant, reach millions of viewers around the country in the comfort of their homes. Indeed, the use of modern mass media gives the poor candidate the opportunity to make himself known to the electorate at an affordable cost. Yet, these means of communication are denied such candidates due to the imagined apprehension that more affluent candidates may monopolize the airwaves. This fear, however, need not materialize as the COMELEC is precisely empowered to regulate mass media to prevent such a monopoly. Likewise, the ceiling on election spending imposed by law upon all candidates, regardless, will also serve as a deterrent.

Second, the means employed is less than effective, for with or without the ban, moneyed candidates, although similarly barred from buying mass media coverage, are in a position to lavish their funds on other propaganda activities which their lesser-endowed rivals can ill-afford. Furthermore, we take judicial notice of the inability of COMELEC to enforce laws limiting political advertising to "common poster areas." Many places in cities have been ungainly plastered with campaign materials of the better off candidates. What use is there in banning political advertisements to equalize the situation between rich and poor candidates, when the COMELEC itself, by its failure to curb the political excesses of candidates, effectively encourages the prevailing disparities? Why then single out political advertising? What is the reasonable necessity of doing so?

To be realistic, judicial notice must be taken of the fact that COMELEC, in narrowing down its list of "serious" candidates, considers in effect a candidate's capability to wage an effective nationwide campaign — which necessarily entails possession and/or availability of substantial financial resources. Given this requirement, the objective of equalizing rich and poor candidates may no longer find relevance, the candidates ultimately allowed to run being relatively equal, as far as resources are concerned. Additionally, the disqualification of nuisance candidates, allegedly due to their inability to launch serious campaigns, itself casts doubt on the validity of the prohibition as a means to achieve the state policy of equalizing access to opportunities for public service. If poor and unknown candidates are declared unfit to run for office due to their lack of logistics, the political ad ban fails to serve its purpose, as the persons for whom it has been primarily imposed have been shunted aside and thus, are unable to enjoy its benefits.

It must be kept in mind that the holding of periodic elections constitute the very essence of a republican form of government, these being the most direct act and participation of a citizen in the conduct of government. In this process, political power is entrusted by him, in concert with the entire body of the electorate, to the leaders who are to govern the nation for a specified period. To make this exercise meaningful, it is the duty of government to see to it that elections are free and honest and that the voter is unhampered by overt and covert inroads of fraud, force and corruption so that the choice of the people may be untrammelled and the ballot box an accurate repository of public opinion. And since so many imponderables may affect the outcome of elections — qualifications of voters and candidates, education, means of transportation, health, public discussion, private animosities, the weather, the threshold of a voter's resistance to pressure — the utmost ventilation of opinion of men and issues, through assembly, association and organizations, both by the candidate and the voter, becomes a sine qua non for elections to truly reflect the will of the electorate.

With the prohibition on political advertisements except through the Comelec space and time, how can a full discussion of men, issues, ideologies and programs be realized? Article III, Section 4 of the Constitution provides that "(n)o law shall be passed abridging the freedom of speech, of expression, of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." Implicit in this guarantee is the right of the people to speak and publish their views and opinions on political and other issues, without prior restraint and/or fear of subsequent punishment. Yet Section 11(b), by authorizing political advertisements only via the COMELEC effectively prevents the candidates from freely using the facilities of print and electronic mass media to reach the electorate. A more blatant form of prior restraint on the free flow of information and ideas can hardly be imagined. To be sure, it does not constitute an absolute restriction, but it is restriction nonetheless, as odious and insidious as any that may be conceived by minds canalized in deepening grooves.

I hold that, given our experience in the past two elections, political advertisements on radio and television would not endanger any substantial public interest. Indeed, allowing advertisements would actually promote public interest by furthering public awareness of election issues. The objective, equalizing opportunities for public service, while of some immediacy during election times, does not justify curtailing the citizen's right of free speech and expression.

No such clear and present danger exists here as to justify banning political advertisements from radio and television stations.

Past experience shows that the COMELEC has been hard put effectively informing the voting populace of the credentials, accomplishments, and platforms of government of the candidates. There are 17,396 national and local elective public positions21 which will be contested by an estimated 100,000 candidates22 on May 11, 1998. For national positions, the list has been trimmed down to 11 candidates for president, 9 candidates for vice-president, and 40 candidates for senator. It is difficult to see how the number of candidates can be adequately accommodated by "COMELEC Space" and "COMELEC Time." Resolution No. 2983 of the COMELEC, issued in compliance with Section 92 of B.P. 881, mandates that at least thirty minutes or prime time be granted to the Commission, free of charge, from February 10, 1998 until May 9, 1998.23 Thirty minutes of prime-time for eighty-nine days (89) is scarcely enough time to introduce candidates to the voters, much less to properly inform the electorate of the credentials and platforms of all candidates running for national office. Let us be reminded that those running for local elective positions will also need to use the same space and time from March 27 to May 9, 1998, and that the COMELEC itself is authorized to use the space and time to disseminate vital election information.24 Clearly, "COMELEC Space" and "COMELEC Time" sacrifices the right of the citizenry to be sufficiently informed regarding the qualifications and programs of the candidates. The net effect of Section 11(b) is, thus, a violation of the people's right to be informed on matters of public concern and makes it a palpably unreasonable restriction on the people's right to freedom of expression. Not only this, the failure of "Comelec Space" and "Comelec Time" to adequately inform the electorate, only highlights the unreasonableness of the means employed to achieve the objective of equalizing opportunities for public service between rich and poor candidates.

Again, NPC v. COMELEC finds Section 11(b) valid, as paid political advertisements are allowed in fora other than modern mass media, thus: "aside from Section 11(b) of R.A. 6646 providing for 'COMELEC Space' and 'COMELEC Time,' Sections 9 and 10 of the same law afford a candidate several venues by which he can fully exercise his freedom of expression, including freedom of assembly." A concurring opinion points to the mandate of COMELEC to encourage non-political, non-partisan private or civic organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for the same office may participate in, the designation of common poster areas, the right to hold political caucuses, conferences, meetings, rallies, parades, and other assemblies, as well as the publication and distribution of campaign literature. All these devices conveniently gloss over the fact that for the electorate, as shown in surveys by the Ateneo de Manila University's Center for Social Policy and Public Affairs, mass media remains to be the most important and accessible source of information about candidates for public office.

It must be borne in mind that the novel party-list system will be implemented in the impending elections. The party-list system, an innovation introduced by the 1987 Constitution in order to encourage the growth of a multi-party system is designed to give a chance to marginalized sectors of society to elect their representatives to the Congress. A scheme aimed at giving meaningful representation to the interests of sectors which are not adequately attended to in normal legislative deliberations, it is envisioned that system will encourage interest in political affairs on the part of a large number of citizens who feel that they are deprived of the opportunity to elect spokesmen of their own choosing under the present system. It is expected to forestall resort to extra-parliamentary means by minority groups which would wish to express their interests and influence governmental policies, since every citizen is given a substantial representation.25

Under R.A. 7941, known as the Party-List System Act, the labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas worker and professional sectors26 will have the opportunity to elect representatives to Congress. With the prohibition on political advertisements, however, those parties who wish to have their candidates elected as sectoral representatives, are prevented from directly disseminating their platforms of government through the mass media. The ban on political advertisements thus serves as a deterrent to the development of self-reliance, self-development, logistical and organizational capability on the part of sectoral parties/organizations, even as it inhibits them from reaching their target audiences. What more effective way of depriving them of the chance of consolidating a mass base sorely needed for a fair chance of success in a highly competitive political exercise. Likewise, with the inability of the candidates to reach the sectors they seek to represent, the right of the people belonging to these sectors to be informed on matters of concern to them is likewise violated.27

Finally, NPC v. COMELEC invokes the specter of the "captive audience" to justify its stand against political advertisements. Describing political advertisements as "appealing to the non-intellective faculties of the captive and passive audience," it says that anyhow, the only limitation imposed by Section 11(b) upon the free speech of candidates is on their right to bombard the helpless electorate with paid advertisements commonly repeated in the mass media ad nauseam.

Suffice it to say that, with the exception of obscenity, seditious speech, libel, and the like, it is not for this Court to determine what the people may or may not watch or read. Even "mind-numbing" political advertisements are subject to the constitutional safeguard of due process.

The guarantee of the freedom of speech which has been defined by Wendell Phillips as "the instrument and guarantee and the bright and consummate flower of all liberty," has always been granted a predominant status in the hierarchy of individual rights.28 It is founded on the belief that the final end of the state was to make men free to develop their faculties and that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.29 Its purpose is to preserve an uninhibited marketplace of ideas where truth will ultimately prevail.30 "An individual who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgment by exposing it to opposition and make full use of different minds. Discussion must be kept open no matter how certainly true an accepted opinion may be; many of the most widely accepted opinions have turned out to be erroneous. Conversely, the same principles apply no matter how false or pernicious the new opinion may be; for the unaccepted opinion may be true and partially true; and even if false, its presentation and open discussion compel a rethinking and retesting of the accepted opinion.31 As applied to instant case, this Court cannot dictate what the citizen may watch on the ground that the same appeals only to his non-intellective faculties or is mind-deadening and repetitive. A veritable "Big Brother" looking over the shoulder of the people declaring: "We know better what is good for you," is passé.

As to the puerile allegation that the same constitutes invasion of privacy, making the Filipino audience a "captive audience," the explosive growth of cable television and AM/FM radio will belie this assertion. Today, the viewing population has access to 12 local TV channels,32 as well as cable television offering up to 50 additional channels. To maintain that political advertisements constitute invasion of privacy overlooks the fact that viewers, with the surfeit of channels, can easily skip to other TV channels during commercial breaks — a fact which, coupled with the now ubiquitous remote control device, has become the bane of advertisers everywhere.

The line between gaining access to an audience and forcing the audience to hear is sometimes difficult to draw, leaving the courts with no clearcut doctrine on issues arising from this kind of intrusion. This is specially true in cases involving broadcast and electronic media. The US cases cited as authorities on the captive audience phenomenon, which, incidentally, did not involve the issue of election campaigns,33 provide little guidance as to whether freedom of speech may be infringed during the campaign period for national elections on account of the individual's right to privacy.34 Prudence would dictate against an infringement of the freedom of speech if we are to take into consideration that an election campaigns is as much a means of disseminating ideas as attaining political office35 and freedom of speech has its fullest and most urgent application to speech uttered during election campaigns.36 In Buckley v. Valeo, a case involving the constitutionality of certain provisions of the Federal Election Campaign Act, the United States Supreme Court per curiam held that:

The fear that the candidates will bombard the helpless electorate with paid advertisements, while not entirely unfounded, is only to be expected considering the nature of political campaigns. The supposition however that "the political advertisements which will be "introjected into the electronic media and repeated with mind deadening frequency" are commonly crafted not so much to inform and educate as to condition and manipulate, not so much to provoke rational and objective appraisal of candidates' qualifications or programs as to appeal to the intellective faculties of the captive and passive audience" is not a valid justification for the infringement of so paramount a right granted by the Constitution inasmuch as it is the privilege of the electorate in a democratic society to make up their own minds as to the merit of the advertisements presented. The government derives its power from the people as the sovereign and it may not impose its standards of what is true and what is false, what is informative and what is not for the individual who, as a "particle" of the sovereignty is the only one entitled to exercise this privilege.

Government may regulate constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the said interest without unnecessarily interfering with the guarantee of freedom of expression. Mere legislative preference for one rather than another means for combating substantive evils may well be an inadequate foundation on which to rest regulations which are aimed at or in their operation diminish the effective exercise of rights so necessary to maintenance of democratic institutions.38

It should be noted that legislature has already seen fit to impose a ceiling on the candidates' total campaign expenditures39 and has limited the political campaign period to 90 days for candidates winning for national office and 60 days for congressmen and other local officials. With these restrictions, it cannot be gainsaid that the constitutional provision on social justice has been sufficiently complied with. We see no reason why another restriction, must be imposed which only burdens the candidate and voters alike. To make matters worse, we are not even certain as to the efficacy of the "ad ban" in curtailing the feared consequences of the object of its restriction. Of course, this is not to say that the law is being struck down as unconstitutional mainly because it is efficacious or inefficacious. If this is the only issue which confronts us, there would have been no need to give due course to the petition inasmuch as we would be inquiring as to the wisdom of the law and treading into an area which rightfully belongs to the legislature. Verily, courts cannot run a race of opinions upon points of right, reason and expediency with the law-making power.40

The constitutional question at hand is not just a simple matter of deciding whether the "ad ban" is effective or ineffective in bridging the financial disparity between the rich and poor candidates. Sec 11(b) of RA No. 6646 strikes at the very core of freedom of expression. It is unconstitutional not because we are uncertain as to whether it actually levels the playing field for the candidates but because the means used to regulate freedom of expression is on all points constitutionally impermissible. It tells the candidates when, where and how to disseminate their ideas under pain of punishment should they refuse to comply. The implications of the ban are indeed more complex and far reaching than approximating equality among the rich and poor candidates.

The primacy accorded the freedom of expression is a fundamental postulate of our constitutional system. The trend as reflected in Philippine and American decisions is to recognize the broadest scope and assure the widest latitude to this guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust and wide open and may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are or even stirs people to anger.41

The repression of expression in an attempt to level the playing field between the rich and the poor candidates is not only unrealistic but goes beyond the permissible limits of freedom of expression as enshrined in the constitution. Social justice is a laudable objective but it should not be used as a means to justify infringement of the freedom of expression if it can be achieved by means that do not unnecessarily trench on the individual's fundamental right. The case of Guido v. Rural Progress Administration,42 is particularly enlightening. In said case, we had occasion to state that:

While we concede the possibility that the rich candidates may dominate the airwaves to the detriment of the poor candidates, the latter should not be prevented from replying.(awÞhi( While they may be restricted on account of their financial resources, they are not denied access to the media altogether. This is what is meant by the phrase "equal time, space, equal opportunity and the right of reply" under Article IX (C)(4) of the 1987 Constitution which was inserted by the framers of the Constitution as a reaction to a 1981 ruling of the Supreme Court that when the president speaks over radio or television, he speaks not as representative of his party but of the people and therefore opposition parties have no right to demand equal time.43

It is ironic that the guarantee of freedom of expression should be pitted against the constitutional provision on social justice because the freedom of speech is the most potent instrument of public opinion, not to speak of its being the most effective weapon for effecting political and social reforms. Certainly, an infringement of the freedom of speech in a less than heroic attempt at attaining social justice cannot be countenanced, for in the ultimate analysis social justice cannot flourish if the people's right to speak, to hear, to know and ask for redress of grievances is watered down.

A word on the intervenors' argument that Resolution No. 2983, Section 2, insofar as it directs every radio broadcasting and television station to provide COMELEC with air time free of charge constitutes taking of private property for public use without just compensation. The COMELEC, anticipating its vulnerability to said challenge passed Resolution 2983-A on March 3, 1998 requiring that it pay just compensation for its COMELEC time.

The novelist George Orwell once said, "In a society in which there is no law, and in theory no compulsion, the only arbiter of behavior is public opinion. But public opinion, because of the tremendous urge to conformity in gregarious animals, is less tolerant than any other system of law." For want of legislature to equalize the playing field between the rich and the poor candidates, it has, by imposing a complete prohibition on paid political advertisements, burned down a house to roast a pig. For fear of accusations that it might be treading into an area which rightfully belongs to the legislature, the Court today, by sanctioning an unnecessary infringement on the freedom of speech, has unwittingly allowed the camel's nose into the tent.

My colleague, Justice Reynato Puno, in his separate opinion, apparently overlooked the thrust of our dissenting opinion when we quoted the case of Buckley v. Valeo.44 Lest we be misunderstood, we have in no way relied on the Buckley v. Valeo case for the grant of the instant petition inasmuch as it has never escaped our notice that legislature has already seen fit to impose a ceiling on the candidates' total campaign expenditures45 Precisely, we have repeatedly emphasized in the dissenting opinion that we see no reason why another restriction must be imposed on the constitutional guarantee of freedom of speech which only burdens the candidates and electorates alike when legislature has already taken steps to comply with the constitutional provision on social justice by imposing a ceiling on the candidates' total campaign expenditures and limiting the campaign period to 90 days for candidates running for national office and 60 days for congressmen and other local officials. We have mentioned Buckley if only to underscore the fact that due to the primacy accorded to freedom of speech, courts, as a rule are wary to impose greater restrictions as to any attempt to curtail speeches with political content. To preserve the sanctity of the status accorded to the said freedom, the US Supreme Court has, in fact, gone as far as invalidating a federal law limiting individual expenditures of candidates running for political office.

In any case, to address some misconceptions about existing jurisprudence on the matter, we now present a brief discussion on Buckley and the preceding US cases. In the case of Buckley v. Valeo, a divided US Supreme Court, per curiam held that a federal law limiting individual contributions to candidates for office served the state's compelling interest in limiting the actuality and appearance of corruption. However a law limiting expenditures by candidates, individuals and groups was held unconstitutional. The rationale for the dichotomy between campaign expenditures and contributions has been explained in this wise — campaign contributions are marginal because they convey only an undifferentiated expression of support rather than the specific values which motivate the support. Expenditures, on the other hand, as directly related to the expression of political views, are on a higher plane of constitutional values. The Court, in noting that a more stringent justification is necessary for legislative intrusion into protected speech said, "A restriction on the amount of money a person or a group can spend on political communication necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating in today's mass society requires the expenditure of money."46

A more discerning scrutiny of the US cases following Buckley, would show that while Buckley has been widely criticized, it has, to date, never been modified, much less discredited. In California Medical Association vs. FEC,47 a law limiting the amount an incorporated association can contribute to a multi-candidate political committee was upheld. The spending was viewed not as independent political speech but rather as "speech by proxy," hence, the spending was deemed analogous to group contributions which can be regulated.

In FEC vs. National Conservative Political Action Comm.48 the US Supreme Court invalidated a section of the Presidential Election Campaign Fund Act which makes it a criminal offense for an independent political committee to spend more than $1,000 to further the election of a presidential candidate who elects public funding. National Conservative Political Action Committee (NCPAC) and the Fund for a Conservative Majority (FCM), two political action committees or PAC's, solicited funds in support of President Reagan's 1980 presidential campaign. The PAC's spent these funds on radio and television advertising in support of Reagan. The Court, relying on Buckley v. Valeo and the distinction it drew between expenditures and contributions, held that the independent expenditures of the political committees were constitutionally protected for they "produce speech at the core of the First Amendment" necessitating a "rigorous standard of review." Justice Rehnquist, for the court, likened the restriction to allowing a speaker in a public hall to express his views while denying him use of the amplifier. As in Buckley, independent expenditures, not coordinated with candidates' political campaign, were seen as presenting a lesser danger of political quid pro quos. The Court then proceeded to reject efforts to support the statutory limitation on expenditures on the basis of special treatment historically accorded to corporations inasmuch as the terms of the Campaign Fund Act "apply equally to an informal neighborhood group that solicits contributions and spends money on a presidential election campaign as to the wealthy and professionally managed PAC's."

In the case of FEC v. Massachussets Citizens for Life (MCFL),49 a provision of the Federal Election Campaign Act prohibiting direct expenditure of corporate funds to a non-profit, voluntary political association concerned with elections to public office was struck down as unconstitutional. No compelling government interest was found to justify infringement of protected political speech in this case where a small voluntary political association, which had no shareholders and was not engaged in business, refused to accept contributions from either business corporations or labor unions.

In Austin v. Michigan Chamber of Commerce,50 the case cited by Justice Puno, a Michigan statute prohibiting corporations from making campaign contributions from their general treasury funds to political candidates was held not to violate the first amendment even though the statute burdened expressive activity mainly because the statute was sufficiently narrowed to support its goal in preventing political corruption or the appearance of undue influence — it did not prohibit all corporate spending and corporations were permitted to make independent expenditures for political purposes from segregated funds but not from their treasuries. Notably, the non profit corporation involved in this case, the Michigan Chamber of Commerce (hereinafter referred to as the Chamber of Commerce), lacked three of the distinctive features of MCFL, the organization involved in the FEC vs. National Conservative Political Action Comm51 case, namely: (1) The Chamber of Commerce, unlike MCFL, was not formed just for the purpose of political expression (2) The members of the Chamber of commerce had an economic reason for remaining with it even though they might disagree with its politics and (3) The Chamber of Commerce, unlike MCFL, was subject to influence from business corporations which might use it as a conduit for direct spending which would pose a threat to the political marketplace.

From the foregoing, it should be obvious that Austin in fact supports the holding in Buckley v. Valeo and "refines" it insofar as as it allows the regulation of corporate spending in the political process if the regulation is drawn with sufficient specificity to serve the compelling state interest in reducing the threat that "huge corporate treasuries" will distort the political process and influence unfairly the outcome of elections.

The ad ban, undoubtedly, could hardly be considered as a regulation drawn with sufficient specificity to serve compelling governmental interest inasmuch as it imposes a complete prohibition on the use of paid political advertisements except through Comelec time and space despite the fact that Congress has already seen fit to impose a ceiling on the candidates' total campaign expenditures. While it seems a rather fair proposition that Congress may regulate the misuse of money by limiting the candidates' total campaign expenditures, it seems a rather curious supposition that Congress through the ad ban can regulate the misuse of money by telling the candidates how, when and where to use their financial resources for political campaigns. Obviously, it is one thing to limit the total campaign expenditures of the candidates and another to dictate to them as to how they should spend it.

Freedom of expression occupies a preferred position in the hierarchy of human values. The priority gives the liberty a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not the limitation which determines what standard governs the choice. 52 Consequently, when the government defends a regulation on speech as a means to redress past harm or prevent anticipated harm, it must do more than simply "posit the existence of the disease sought to be cured.53 It must demonstrate that the recited harms are real, not merely conjectural and that the regulation will alleviate these harms in a material way.54

As earlier pointed out, legislature has already seen fit to impose a ceiling on the total campaign expenditures of the candidates and has limited the campaign period for 90/60 days. We see no reason why another restriction must be imposed which only burdens the candidates and voters alike. The fact alone that so much time has been devoted to the discussion as to whether the ad ban does in fact level the playing field among the rich and poor candidates should be a strong indication in itself that it is a dubious intrusion on the freedom of expression which should not be countenanced.

Illegitimate and unconstitutional practices make their initial foothold by furtive approaches and minimal deviations from legal modes of procedure. Hence, courts must be extremely vigilant in safeguarding the fundamental rights granted by the Constitution to the individual. Since freedom of expression occupies a dominant position in the hierarchy of rights under the Constitution, it deserves no less than an exacting standard of limitation. Limitations on the guarantee must be clearcut, precise and, if needed readily controllable, otherwise the forces that press towards curtailment will eventually break through the crevices and freedom of expression will become the exception and suppression the rule.55 Sadly, the much vaunted ad ban failed to live up to such standard and roseate expectations.

At this juncture, as we celebrate the Centennial of our Philippine Independence, it is timely to call to mind that wars and revolutions have been fought, not only in our shores and in our time, but in centuries past, halfway around the globe to keep these subject rights inviolate. To stretch our memories, Spain's adamant denial of basic freedoms to our hapless forefathers, among others, sparked the Philippine revolution. Jose Rizal, in "Filipinas Despues de Cien Años"56 described the reform a sine quibus non, saying, "The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free." The Filipino propagandists who sought refuge in the freer intellectual climate of Spain invariably demanded "liberty of the press, of cults, and of associations57 through the columns of "La Solidaridad."

One of the more lofty minds unleashed his fierce nationalistic aspirations though the novels Noli Me Tangere and El Filibusterismo, necessarily banned from the author's native land. Eventually, the seeds of these monumental works ignited the flame of revolution, devouring in the process its foremost exponent, albeit producing a national hero, Jose Rizal. The mighty pen emerged victorious over the colonizers' sword.

The Malolos Constitution, approved before the turn of century on January 20, 1899, enshrined freedom of expression in Article 20 of its Bill of Rights, thus:

This right, held sacrosanct by the Filipino people and won at the cost of their lives found its way ultimately in the Constitutions of a later day, reenforced as they were, by the profound thoughts transplanted on fertile soil by libertarian ideologies. Why emasculate the freedom of expression now to accord a governmental agency a power exercisable for a limited period of time for the dubious purpose of "equalizing" the chances of wealthy and less affluent candidates?

In summary, I hold that Section 11(b) of R.A. 6646, in the six years that have elapsed since it was upheld as being in consonance with the fundamental law, has now become out of sync with the times and, therefore, unreasonable and arbitrary, as it not only unduly restrains the freedom of expression of candidates but corollarily denies the electorate its fullest right to freedom of information at a time when it should flourish most.

For the reasons stated above, I VOTE to declare Section 11(b) of R.A. 6646 UNCONSTITUTIONAL.