Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 205357 September 2, 2014
GMA NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
SENATOR ALAN PETER "COMPAÑERO" S. CAYETANO,Petitioner-Intervenor.
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G.R. No. 205374
ABC DEVELOPMENT CORPORATION, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
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G.R. No. 205592
MANILA BROADCASTING COMPANY, INC. and NEWSOUNDS BROADCASTING NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
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G.R. No. 205852
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) and ABS-CBN CORPORATION, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
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G.R. No. 206360
RADIO MINDANAO NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
SEPARATE CONCURRING OPINION
CARPIO, Acting C.J.:
I join the ponencia's holding striking down Section 9(a) of COMELEC Resolution No. 9615, as amended, (Resolution) for being violative of the Free Speech Clause of the Constitution. In addition, however, I vote to strike down Section 6.2 of the Fair Elections Act (Republic Act"No. 9006 [RA 9006]) for similarly trenching on the freedoms of speech and of expression of candidates and political parties. I find this conclusion inevitable as Section 9(a) of the Resolution is merely the administrative rule implementing Section 6.2 of RA 9006.
Minimizing Election Spending the Intended Government Interest in Capping Campaign Air Time
The COMELEC grounds its issuance of the Resolution not only on RA 9006 but also on two provisions of the Constitution,1 namely, Section 2(7) and Section 4, both of Article IX-C. Section 2(7) concerns the power of the COMELEC to "[r]ecommend to the Congress effective measures to minimize election spending, x x x."2 On the other hand, Section 4 authorizes the COMELEC, during the election period, to "supervise or regulate the enjoyment and utilization of all franchises x x x for the operation of x x x media of communication or information x x x."3 Different constitutional values underpin these two provisions. Section 2(7) advances the government interest of keeping election spending to a minimum to maximize competition in electoral exercises while Section 4 ensures "equal opportunity, time and space, including reasonable, equal rates"to candidates and political parties during the campaign period.
In capping the broadcast advertising time of candidates and political parties, neither Congress nor the COMELEC (under Section 6.2 of RA 9006 and Section 9(a) of the Resolution, respectively) supervised or regulated the enjoyment and utilization of franchises of media outfits under Section 4, Article IX-C. Media firms continue to operate under their franchises free of restrictions notwithstanding the imposition of these air time caps. Section 6.2 of RA 9006 and Section 9(a) of the Resolution do not approximate the rule barring media firms from "sell[ing] x x x print space or air time for campaign or other political purposes except to the Commission [on Elections],"4 a clear statutory implementation of Section 4.5 On the other hand, by regulating the length of broadcast advertising of candidates and political parties, a propaganda activity with correlative financial effect, Section 6.2 of RA 9006 and Section 9(a) of the Resolution enforce Section 2(7), Article IX-C. They are meant to advance the government interest of minimizing election spending. Section 6.2 of RA 9006 and Section 9(a) of the Resolution Restrict Free Speech and Free Expression Excessively and Minimize Election Spending Arbitrarily
Section 6.2 of RA 9006 and Section 9(a) of the Resolution are content-neutral "time" regulations which do not reach the content of campaign speech but merely limit its cumulative broadcast "time" or length during the campaign period. Such content-neutral regulations are subjected to the intermediate, not heightened, level of scrutiny under the four-pronged O’Brientest, originally crafted by the U.S. Supreme Court and later adopted by this Court.6 Under O’Brien, Section 6.2 of RA 9006 and Section 9(a) of the Resolution will pass constitutional muster "[1] [if they are] within the constitutional power of the Government; [2] if [they] further[] an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on the x x x freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest."7
Section 6.2 of RA 9006 provides:
Equal Access to Media Time and Space. – x x x
x x x x
6.2. (a) Each bona fide candidate orregistered political party for a nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of televisionadvertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitledto not more than sixty (60) minutes of television advertisement and ninety(90) minutes of radio advertisement whether by purchase or donation.
x x x x
Section 9 (a) of the Resolution, implementing Section 6.2 for last year’s election, provides:
Requirements and/or Limitations on the Use of Election Propaganda through Mass Media.- All parties and bona fide candidates shall have equal access to media time and space for their election propaganda during the campaign period subject to the following requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of air time that a candidate, or party may use for their broadcast advertisements or election propaganda shall be, as follows:
For Candidates/Registered Politicalparties for a National Elective Position [-] [n]ot more than an aggregate total of one hundred (120) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and one hundred eighty (180) minutes of radio advertising, whether airing onnational, regional, or local radio, whether by purchase or donation.
For Candidates/Registered Political parties for a Local Elective Position [-] [n]ot more than an aggregate total of sixty (60) minutes of television advertising, whether appearing on national, regional, or local, free or cable television,and ninety (90) minutesof radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation.
These provisions pass the first and third prongs of O’Brien. Undoubtedly, it was within the power of Congress to enact Section 6.2 of RA 9006 and of COMELEC to adopt Section 9(a) of the Resolution to enforce Section 2(7), Article IX-C of the Constitution. Nor is there any question that the government interest ofminimizing election spending under Section 2(7) of Article IX-C is unrelated to the suppression of free expression, concerned as it is in the non-speech government interest of maximizing competition in the political arena. As explained below, however, the capping of campaign air time by Section 6.2 of RA 9006 and Section 9(a) of the Resolution advances the state interest of minimizing election spending arbitrarily and the incidental restriction on the freedoms of speech and expression these provisions impose is greater than is essential to the furtherance of such state interest, thus failing the second and fourth prongs of O’Brien.
Under Section 6.2 of RA 9006, the ban in broadcast campaign kicksin once the limits of the air time caps are reached regardlessof the amount of money actually spent by candidates orpolitical parties. Section 9(a) of the Resolution tightens the regulatory noose by reckoning the air time caps for the entire campaign period cumulatively.8 By divorcing the amount of campaign air time logged by candidates and political parties during the campaign period from the amount of expenses they incur to do so, Section 6.2 of RA 9006 and Section 9(a) of the Resolution operate under the assumption that advertising rates in TVand radio are uniform, regardless of the broadcast coverage and time.
The fact of the matter is, advertising rates for each medium vastly vary depending on the extent and time of broadcast. Even if the statutorily mandated discounts are factored,9 a 30-second campaign ad placed in petitioner GMA, Inc.’s national TV station GMA-7 on a weekday evening primetime slot will cost a candidate orpolitical party 96% more than a 30-second campaign ad placed by another candidate or party in any of GMA, Inc.’s provincial TV stations.10 If the ad is placed on a weekend nonprimetime slot (afternoon), the price variation dips slightly to 93%.11 The rates charged by petitioner ABS-CBN Corporation reflect substantially the same price variance. A 30-second campaign ad placed in its national TV station ABS-CBN on a primetime slot willcost a candidate or political party 97% more than a 30-second campaign ad placed by another candidate or party in any of ABS-CBN Corporation’s mid-level local stations.12 For nonprimetime placement, the price difference is 92%.13
Substantially the same level of rate variance obtains in radio advertising. A 30-second campaign ad placed in petitioner GMA, Inc.’s DZBB AM radio station for national broadcast is, on average, 93% more expensive than a 30-second campaign ad placed by another candidate or political party aired at GMA, Inc.’s AM radio stations in Puerto Princesa City (DYSP), Iloilo City (DYSI), and Davao City (DXGM).14 For petitioner ABS-CBN Corporation, a 30-second campaign ad placed in its DZMM AM radio station for national broadcast ona primetime slot (club rate) is 91% more expensive than a 30-second campaign ad placed by another candidate or political party aired at ABS-CBN Corporation’s AM radio stations in Cebu City and Davao City.15
The non-uniform rates in broadcast advertising mean that candidate A for a national position who opts to place campaign ads only in strategic provincial TV and radio stations of the top two networks will have spent at least 90% less than candidate B for the same position who places campaign ads in national TV and radio stations of such networks for the same amount of time as candidate A. Nevertheless, as Section 6.2 of RA 9006 and Section 9(a) of the Resolution do not take broadcast rate variances into account, candidate A will have no choice but to stop airing campaign ads once he reaches the limits of the air time caps even though, compared to candidate B, his expenses for the ad placements are drastically lower. The government interest of minimizing election spending is furthered only in the case of candidate B but not with candidate A. On the other hand, the candidate A’s right to make known his candidacy and program of government to the voters – the heart of the freedoms of (political) speech and (political) expression guaranteed by the Constitution – is unduly restricted even though, compared to candidate B, his campaign expenses for airing ads are enormously lower. The system of value-neutral air time capping cuts deep into the core of fundamental rights while advancing a state interest arbitrarily.
The same excessive rights restrictions and arbitrary advancement of public policy unfold for candidates atthe local level. Metro Manila, unlike the other provinces, is not covered by "local" TV or radio stations. To broadcast a campaign ad onTV or radio, a candidate for any local position in Metro Manila will have to pay the rates for a national broadcast. The dilemma faced by Metro Manila candidates to either (a) inhibit from broadcasting their campaign ads to save money or (b) spend large amounts of campaign funds to air ads unduly restricts their expressive rights and at the same time negates the governmentinterest of minimizing campaign spending.
The value-neutral capping system under Section 6.2 of RA 9006 and Section 9(a) of the Resolution also operates under the false assumption that candidates at the national and local levels are subject to the same general campaign spending limits, thus the uniform air time caps imposed for each category of candidates. Under Batas Pambansa Blg. 881 (BP 881), as amended by Section 13 of Republic Act No. 7166, however, candidates’ spending limits are computed based onthe size of the voting population, with the rates proportional to the size of a candidate’s constituency.16 Because all local candidates under Section 6.2 of RA 9006 and Section 9(a) of the Resolution are allotted the same air time, a candidate for mayor in Catbalogan City (which had 54,459 registered voters in 2010) has the same 60 minutes of TV ad time and 90 minutes of radio ad time as a candidate for mayor in Davao City (which had 909,442 registered voters in 2010) even though their spending limits are, under the 2010 census, ₱163,377 and ₱2,728,326, respectively (at ₱3 per registered voter). As ad rates in Davaobased radio and TV stations are relatively low, it could happen that the Davao City mayoral candidate will haveconsumed her allotted campaign air time while keeping clear of the maximum spending limit, yet, under Section 6.2 of RA 9006 and Section 9(a) of the Resolution she has to stop airing campaign ads.
Section 6.2 of RA 9006 and Section 9( a) of the Resolution Not Reasonably Related to the State Interest of Minimizing
Election Spending
Even if we subject Section 6.2 of RA 9006 and Section 9(a) of the Resolution to the lowest level of scrutiny under the rational basis test, they still fail to withstand analysis. Rules survive this minimal level of scrutiny if the means drawn by Congress or administrative bodies are reasonably related to a legitimate state interest. The government interest Section 6.2 of RA 9006 and Section 9(a) of the Resolution are meant to advance is the minimization of campaign spending. The means Congress and the COMELEC adopted to do so was to place uniform campaign air caps for national and local candidates, without taking into account the amount of money spent by candidates and political parties to air campaign ads. By ignoring the amount of broadcasting expenses incurred by candidates and political parties, Section 6.2 of RA 9006 and Section 9(a) of the Resolution lack any rational relation to the state policy of minimizing election spending under Section 2(7), Article IX-C of the Constitution. Their enforcement will only result in substantial variation in election spending among national and local candidates for airing campaign ads.
Legislative measures aimed at limiting campaign air time to advance the state policy of minimizing campaign spending under Section 2(7), Article IX-C of the Constitution must necessarily be pegged to spending caps for campaign broadcasting. Such caps, in tum, will depend on the size of the voting population for each category of candidates (national or local), consistent with the existing method for capping general campaign spending under BP 88l1 as amended. The monetary limit must be set at say ₱2.00 per registered voter for local candidates and ₱4.00 per registered voter for national candidates. Once the total monetary limits are reached, the ban on broadcast advertising takes effect, regardless of the amount of air time logged. This scheme grants to candidates and political parties greater space for the exercise of communicative freedoms while, at the same time, allows the state to uniformly flag profligate campaigns.
Accordingly, I vote to GRANT the petitions in part and DECLARE Section 9(a) of COMELEC Resolution No. 9615 dated 15 January 2013, as amended by Resolution No. 9631 dated 1 February 2013, and Section 6.2 of Republic Act No. 9006 UNCONSTITUTIONAL for being violative of Section 4 and Section 8 of Article III of the 198 7 Constitution.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1 Decision, pp. 8, 13.
2 The provision reads in full: "Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies."
3 The provision reads in full: "The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections."
4 Section 11(b), Republic Act No. 6646, repealed by Section 14 of RA 9006.
5 Osmeña v. COMELEC, 351 Phil. 692, 708 (1998).
6 Considered as the "canonical" standard of review for content-neutral regulations, the test is eponymously named after US v. O’Brien, 391 U.S. 367 (1968). This Court applied O’Brienin Osmeña v. COMELEC, id. and Social Weather Station v. COMELEC, 409 Phil. 571 (2001). In contrast, content-based regulations are subjected to heightened scrutiny (for the reasons underlying such strict scrutiny and its application in Philippine jurisprudence, see Osmeña v. COMELEC, id. at 717-719).
7 Social Weather Station v. Commission on Elections, id. at 587-588, citing US v. O’Brien, id. at 377.
8 According to petitioner GMA, Inc., this leaves a candidate or political party only 27.3 seconds of campaign broadcast time per day (Decision, p. 41). Under the regulations issued by the COMELEC implementing Section 6.2 of RA 9006 for the 2007 and 2010 elections, the caps were reckoned based on the length of advertising time logged by each candidate or political party at every TV or radio station.
9 Under Section 11 of RA 9006 ("Rates for Political Propaganda. – During the election period, media outlets shall charge registered political parties and bona fide candidates a discounted rate of thirty percent (30%) for television, twenty percent (20%) for radio and ten per cent (10%) for print over the average rates charged during the first three quarters of the calendar year preceding the elections.")
10 Based on petitioner GMA, Inc.’s rate card for 2013 (undiscounted), a 30-second national primetime ad costs ₱695,500 while its regional counterpart costs ₱27,500 (with the 30% statutory discount, the rates are ₱487,000 and ₱19,250, respectively).
11 With the national ad costing ₱425,500 and the regional rate constant.
12 Based on petitioner ABS-CBN Corp.’s rate card for 2013 (undiscounted), a 30-second national primetime ad costs ₱824,374 while its mid-level provincial rate (selected areas) for the same ad is ₱24,800 (with the 30% statutory discount, the rates are ₱577,061.80 and ₱19,360, respectively). The upper-level provincial rate is ₱38,500 (Cebu) while the lower-level rate is ₱7,470 (selected areas).
13 With the national ad costing ₱312,264 (with 30% statutory discount, ₱218,584.80) and the midlevel provincial rate constant.
14 Based on petitioner GMA, Inc.’s rate card for 2013 (undiscounted), DZBB’s rate is ₱70,000 while those for DYSP (Puerto Princesa), DYSI (Iloilo) and DXGM (Davao) are ₱2,100, ₱5,000 and ₱6,900, respectively. With the statutory discount of 20%, the rates for DZBB, DYSP, DYSI and DXGM are ₱56,000, ₱1,680, ₱4,000 and ₱5,520, respectively. If the rate (undiscounted) for Cebu’s DYSS (₱22,500) is taken into account, the average price variation is 87%.
15 Based on petitioner ABS-CBN Corp.’s rate card for 2013 (undiscounted), DZMM’s rate is ₱67,666 (club rate, primetime) while rates for Cebu City and Davao City are the same at ₱6,570.
The rate (undiscounted) for its Palawan AM station is lower at ₱3,290, increasing the price difference with the national primetime, club rate to 95%.
16 Under Section 100 of Batas Pambansa Blg. 881 (BP 881), as amended by Section 13 of Republic Act No. 7166 which provides: "Authorized Expenses of Candidates and Political Parties. - The agreement amount that a candidate or registered political party may spend for election campaign shall be as follows: (a) For candidates. - Ten pesos (₱10.00) for President and Vice-President; and for other candidates Three Pesos (₱3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy: Provided, That a candidate without any political party and without support from any political party may be allowed to spend Five Pesos (₱5.00) for every such voter; and (b) For political parties. - Five pesos (₱5.00) for every voter currently registered in the constituency or constituencies where it has official candidates."
The Lawphil Project - Arellano Law Foundation
SEPARATE CONCURRING OPINION
BRION, J.:
I concur in the result. My reasons for this position are fully explained below.
The Case
The ponencia struck down Commission on Elections (Comelec) Resolution No. 9615, as aITiended by CoITielec Resolution No. 9631. These resolutions changed the basis of the coITiputation of the allowable airtiITie liITiits within which candidates or registered political parties ITiay place their caITipaign advertiseITients on radio or television, as provided under Republic Act (RA) No. 9006 or the Fair Elections Act of 2001. The pertinent portion of this law, Section 6.2, provides:
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one hundred twenty ( 120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television 'advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.
In the 2004,1 2007 and 2010 elections, the Comelec interpreted these provisions to mean that the specified airtime limits apply on a "per (radio/tv) station"basis. For a national candidate, entitlement to airtime translated to television campaign time of 120 minutes for every available television stationand 120 minutes for every available radio station.
For the 2013 elections, the Comelec changed its interpretation, this time interpreting the law in the manner it did in 2001.2 Instead of computing the airtime limits on a per station basis, the Comelec under the challenged resolutions, would now compute the airtime limits on an "aggregate total basis."This translated to very much lesser airtime for campaign advertisements that candidates and registered political parties could place.
According to the ponencia, the Comelec’s new interpretation is legally flawed for the following reasons:
First,the Comelec failed to come up with a reasonable basis and explanation for the interpretative change of the airtime limits under RA No. 9006. The Comelec, through Chairman Sixto Brillantes, explained that the new interpretation was prompted by the need to level the playing field among the candidates. This explanation apparentlysimply assumed that the previous interpretation no longer addressed the 2013 needs, although no supporting basis in evidence and reason was given to support this assumption.
Second, RA No. 9006 on its face does not require that the maximum allowable airtime should be on an "aggregate total" basis. This finds support from the Sponsorship Speech of Senator Raul Roco on RA No. 9006. Also, the fact that RA No. 9006 repealed RA No. 6646’s (or the Electoral Reforms Law of 1987) provision(that prohibits radio broadcasting or television station from giving or donating air time for campaign purposes except through the Comelec) reinforces the Comelec’s earlier and consistent interpretation that the airtime limits apply on a "per station" basis.
Third, Comelec Resolution No. 9615infringes on the people’s right to be duly informed about the candidates and the issues, citing Bantay Republic Act or BA-RA 7941 v. Commission on Elections.3
Fourth, Comelec Resolution No. 9615 violates the candidates’ freedom of speech because it restricts their ability to reach out to a larger audience.
Fifth, Comelec Resolution No. 9615 violates the people’s right to suffrage.
Sixth, the lack of a prior notice and hearing is fatal to the validity of Comelec Resolution No. 9615. The Comelec should have given petitioners prior notice and opportunity for hearing before adopting Comelec Resolution No. 9615 because of the radical change it introduced. Citing Commissioner of Internal Revenue v. Court of Appeals,4 prior notice and hearing is required if an administrative issuance "substantially adds to or increases the burden of those governed." Discussion
A. Grave Abuse of Discretion Issue
a. Due Process and Basic Fairness
I agree with the ponenciathat basic fairness demands that after consistently adopting and using an interpretation of a legal provision, any subsequent change in interpretation that the Comelec would adopt and that would seriously impact on both the conduct and result of the elections should have reasonable basis and be adequately explained to those directly affected.
The petitioner owners/operators ofradio/television networks are directly affected by the Comelec’s new interpretation since they normally sell their airtime to candidates and registered political parties who buy airtime to conduct their campaign and as part of their campaign strategy. With respect to the candidates and as the Comelec very well knows, the effectiveness of their campaign strategy spells the difference between winning and losing in Philippine elections. The Comelec’s knowledge of this basic fact limits the discretion that it otherwise would normally and broadly have as the constitutional body tasked with the enforcement and administration of our election laws.5
Interestingly, in 2001(the year RA No. 9006 was enacted), the Comelec initially interpreted the airtime limits under RA No. 9006 to be applicable on an aggregate total basisin the manner the assailed Comelec Resolution No. 9615 now does. At the instance of petitioner Kapisanan ng Mga Brodkaster sa Pilipinas (KBP), the Comelec (through its Election and Information DepartmentDirector) then held conferences to discuss the present petitioners’ proposed changes.
On February 18, 2004, the Comelec adopted petitioner KBP’s proposal. Since then and untilthe 2010 elections, the Comelec interpreted the equality-of-access thrust of the law to mean that a national candidate or a registered political party could avail of up to 120 minutes and 180 minutes for eachbroadcast radio station and television’s airtime, respectively, for campaign advertisements. This interpretation was only changed for the 2013 elections under the assailed Comelec Resolution No. 9615.
Under these facts, even common sense demands that the Comelec explain to the petitioners the justification for the change, i.e.,why the previous interpretation would no longer be in tune with the equality-ofaccess thrust of the law that remains unchanged in all these elections. This is particularly true for the current petitioners who were the very same parties who actually and successfully prodded the Comelec to reconsider its 2001 interpretation.
As the ponenciaobserved, in the hearing conducted by the Comelec afterthe promulgation of Comelec Resolution No. 9615, the Comelec Chairman offered the petitioners no reasonable explanation; he only relied on the Comelec’s "prerogative to amplify" under RA No. 9006 and on the blanket invocation of the need to level the playing field among candidates.
While the Court has acknowledged the Comelec’s wide discretion in adopting means to carry out its mandate of ensuring free, orderly, and honest elections, this discretion cannot be unlimited and must necessarily be within the bounds of the law6 under the prevailing rule of law regime in our country. The legal limitations include those imposed by the fundamental law, among them, the right to due process where governmental action has been substantively unreasonableor its procedures and processes are unduly harsh.
The Comelec’s failure to sufficiently explain the basis for the change of interpretation it decreed under Resolution No. 9615, in my view, falls within this limitation. Even without going into the niceties and intricacies of legal reasoning, basic fairness7 demands that the Comelec provides a reasonable justification, considering particularly the Comelec’s own knowledge of the dynamics of campaign strategy and the influence of the radio and television as medium of communication.
b. Lack of prior notice and hearing
I similarly agree with the ponenciathat the lack of prior notice and hearing is fatal to the validity of Comelec Resolution No. 9615. Parenthethically, the need for prior notice and hearing actually supports the conclusion that the Comelec’s discretion is not unbridled. Giving the petitioners prior opportunity to beheard before adopting a new interpretation would have allowed the Comelec to make a reasonable evaluation of the merits and demerits of the 2004-2010 interpretation of airtime limits and the needs to satisfy the demands of the 2013 elections.
In my discussions below,I shall supplement the ponencia’s observations (which cited the case Commissioner of Internal Revenue v. Court of Appeals)8 that prior notice and hearing are required if an administrative issuance "substantially adds to or increases the burden of those governed". I do so based on my own assessment that the validity or invalidity of the assailed Comelec Resolution essentially rises or falls on the Comelec’s compliance with the legal concept of due process or, at the very least, the common notion of fairness.
In the latter case, the prevailing circumstances and the interests at stake have collectively given rise to the needto observe basic fairness.
1. The Comelec’s powers
As an administrative agency, the powers and functions of the Comelec may be classified into quasi-legislative and quasi-judicial.
The quasi-judicial powerof the Comelec embraces the power to resolve controversies arising from the enforcement of election laws, and to be the sole judge of all pre-proclamation controversies; and of all contests relating to the elections, returns, and qualifications. In the exercise of quasi-judicial power, the Comelec must necessarily ascertain the existence of facts, hold hearings to secure or confirm these facts, weigh the presented evidence, and draw conclusions from them as basis for its action and exercise of discretion that is essentially judicial in character.9 When exercising this power, dueprocess requires that prior notice and hearing must be observed.10
The remedy against an improvidentexercise of the Comelec’s quasi-judicial power is provided under Article IX-A, Section 7,11 in relation with Article IX-C, Section 3 of the Constitution12 and with Rule 64 of the Rules of Court.
On the other hand, the Comelec’s quasi-legislative power, which it may exercise hand in hand with its power to administer and enforce election laws, refers to its power to issue rules and regulations to implement these election laws. In the exercise of quasi-legislative power, administrative law distinguishes between an administrative rule or regulation (legislative rule), on the one hand, and an administrative interpretation of a law whose enforcement is entrusted to an administrative body (interpretative rule), on the other.13
Legislative rulesare in the nature of subordinate legislation and, as this label connotes, are designed to implement a law or primary legislation by providing the details ofthe law. They usually implement existing law, imposing general, extra-statutory obligations pursuant to the authority properly delegated by Congress and reflect and effect a change in existing law or policy that affects individual rights and obligations.14
A subset of legislative rules are interpretative rulesthat are intended to interpret, clarify or explain existing statutory regulations under which the administrative body operates. Their purpose or objective is merely to construe the administered statute without regard to any particular person or entity that may be covered by the law under construction or interpretation.15 Understood along these lines, it becomes easy to grasp that the requirements of prior notice and hearing, unless expressly required by legislation or by the rules, do not apply to them.16
2. The requirement of notice and hearing in the exercise of quasi-legislative power
a. Statutory Requirement for Notice and Hearing.
In earlier cases, the Court observed that the issuance of rules and regulations in the exercise of an administrative agency’s quasi legislative or rule making power generally does not require prior notice and hearing17 except if the law provides otherwise.18 The requirement for an opportunity to be heard under the exception is provided for under Book VII, Chapter 2, Section 9 of Executive Order (EO) No. 292 (the Administrative Code of 1987). This provision reads:
Section 9. Public Participation.–
(1) If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule.
A patent characteristic of this provision is its permissive language in requiring notice and the opportunity to be heard. The non-mandatory nature of a prior hearing arises from the nature of the proceedings where quasi-legislative power is exercised: the proceedings do not involve the determination of past events or factsthat would otherwise have to be ascertained as basis of an agency’s action and discretion. On the contrary, the proceedings are intended to govern future conduct. Accordingly, the requirement of prior notice and hearing is not indispensable for the validity ofthe exercise of the power.19
It is in this light that the pronouncement in CIR case that the ponenciacited, should be understood.
In CIR case,the CIR issued a memorandumcircular that classified certain brands of cigarettes of a particular manufacturerunder a particular category. The classification resulted in subjecting the cigarette manufacturer to higher tax rates imposed under a new law (that had yet to take effect when the memorandum circular was issued) without affording the cigarette manufacturer the benefit of any prior notice and hearing.
In ruling in the manufacturer’s favor, the Court immediately assumedthat the CIR was exercising its quasi-legislative power when it issued the memorandum circular20 and quoted a portion of Misamis Oriental Association of Coco Traders, Inc. v.Department of Finance Secretary21 as follows:
x x x a legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. In the same way that laws must have the benefit of public hearing, it is generally required that before a legislative rule is adopted there must be hearing x x x (italics in the original).
On the basis of this assumption and the Misamis Orientalruling, the Court held that while an interpretative rule does not require prior notice and hearing (since "it gives no real consequence more than what the law itself has already prescribed"), "an administrative rule x x x that substantially adds to or increases the burden of those governed [requires] the agency to accord at least to those directly affected a chance to be heard, and thereafter tobe duly informed, before that new issuance is given the force and effect of law."
While the Court’s quoted dictum in the case is sound, the facts of the case however reveal that the CIR was not actually wearing its quasilegislative hat when it made the disputed classification; it was in fact exercising its quasi-judicial powerwhen it issued the memorandum circular.22 As discussed elsewhere in this Opinion, prior notice and hearing was in fact indispensable.
This apparent disconnect, however, is rendered academic by the directory requirement of prior notice and hearing under EO No. 292 quoted above: when an agency issuesa legislative rule, the issue of whether compliance with the notice and hearing requirement was "practicable" under the circumstances might depend on the extent of the burden or the adverse effect that the new legislative rule imposes on those who were not previously heard. Effectively, this is the rule that assumes materiality in the case, not the misdirected ruling in the cited CIR case.
In the present case, the requirement of prior notice and opportunity to be heard proceeds from the natureof Comelec Resolution No. 9615 as a legislative rule23 whose new provision on airtime limits directly impacts on the petitioners as a distinct group among the several actors in the electoral process.
On the one hand, the revenues that the petitioners may potentially lose under the Comelec’s "restrictive" interpretation indeed have adverse effects on the petitioners’ operations. On the other hand, substantially limiting the allowable airtime advertisements of candidates would have serious repercussions on their campaign activities and strategies, and ultimately on their ability to win inthe elections. These are serious considerations that make prior notice and hearing in the present case more than "practicable."
Still more important than these individual considerations is the perceived adverse effect, whether trueor not, of the reduction of the airtime limits under Comelec Resolution No. 9615 on the electorate.
We should not also lose sight of the Comelec’s equally noble objective of leveling the playing the field between and among candidates, which objective is itself constitutionally recognized.24 In addition, as one Comelec Commissioner remarked,25 the restrictive interpretation was intended to encourage candidates to comply with an equally relevant statutory regulation on campaign finance.26
At the center of these competing considerations that directly impact on the election system and in the electoral process as a whole is the Comelec. Given its constitutional mandate to enforce and administer all election laws and regulations with the objective of holding free, orderly, honest, peaceful, and credible elections,27 these considerations, in my view, compulsorily required the Comelec to give the petitioners and all those concerned reasonable opportunity for discourse and reasonable basis and explanation for its conclusion.
In other words, while the petitioners do not have any absolutely demandable right to notice and hearing in the Comelec’s promulgation of a legislative rule, the weight and seriousness of the considerations underlying the change in implementing the airtime limit rule, required a more circumspect and sensitive exerciseof discretion by the Comelec, in fact, the duty to be fair thatopens the door to due process considerations. The changetouched on very basic individual, societal and even constitutional values and considerationsso that the Comelec’s failure to notify and hearall the concerned parties amounted to a due process violation amounting to grave abuse in the exercise of its discretion in interpreting the laws and rules it implements.
While the Comelec admittedly conducted a hearing after promulgating Comelec Resolution No. 9615, this belated remedy does not at all cure the resolution’s invalidity.
The requirement of prior notice and hearing is independently meant to reinforce the requirement of reasonable basis and adequate explanation of the Comelec’s action as part of the petitioners’ due process rights. To state the obvious,in the election setting that Comelec Resolution No. 9615 governed, time is ofthe essence so that the lack of due process might have irremediably affected the concerned parties by the time the post-promulgation hearing was called. Additionally and more importantly, concluding thata post-promulgation hearing would suffice in Comelec Resolution No. 9615 setting would have signified the lack of limitation, even temporarily, on the Comelec’s otherwise broad discretion. In the fine balancing that elections require, such remedial actions would not suffice.
As specifically applied to the realities of the present case, the requirement of prior notice and hearing is an opportunity for boththe petitioners and the Comelec to support their respective positions on the proper interpretation of the airtime limits under RA No. 9006. This is especially true when we consider that under RA No. 9006, the Comelec is expressly empowered to "amplify" the guidelines provided in the law, among them, the provision on airtime limits. As will be discussed later in this Opinion, the Comelec’s express power to "amplify" supports the conclusion I reached.
Based on these considerations, the ponenciacould very well have ended further consideration of other issues as the violation of due process already serves as ample basis to support the conclusion to invalidate Comelec Resolution No. 9615. Instead, the ponencia proceeded to consider other constitutional grounds that, in my view, were not then appropriate for resolution.
B. Judicial Power and Lis Mota
When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are present: (1) the existence of an actual and appropriate case; (2) the existence of personal and substantial interest on the part of the party raising the constitutional question; (3) recourse tojudicial review is made at the earliest opportunity; and (4) the constitutional question is the lis motaof the case.28
The thrust of my discussion focuses on the last requisite.
Lis motaliterally means "the cause of the suit or action." This last requisite of judicial review is simply an offshoot of the presumption of validity accorded to executive and legislative acts of our co-equal branches and of the independent constitutional bodies. Ultimately, it is rooted in the principle of separation of powers.
Given this presumption of validity, the petitioner who claims otherwise carries the initial burden ofshowing that the case cannot be resolved unless the constitutional question he raised is determined by the Court.29 From the Court’s perspective, it must avoid resolving constitutional issues unless their resolution is absolutely necessary and clearly unavoidable.
By holding that the Comelec must have reasonable basis for changing their interpretation of the airtime limits under RA No. 9006 and that, impliedly its absence in the present case constitutes a violation of the petitioners’ right to due process, the ponenciain effect recognized the Comelec’s duty under the circumstances to provide for a reasonable basis for its action, as well as its competence to adequately explain them as the constitutional body tasked to enforce and administer all elections laws and regulations. This recognition is consistent with the Court’s similar recognition that the Comelec possesses wide latitude of discretion in adopting means to carryout its mandate of ensuring free, orderly, and honest elections , but subject to the limitation that the means so adopted are not illegal ordo not constitute grave abuse of discretion.30 Given this recognition and in light of the nullity of Comelec Resolution No. 9615, the Court, for its part, should also recognize that it should not preempt the Comelec from later on establishing or attempting to establish the bases for a new interpretation that is not precluded on other constitutional grounds. The Comelec possesses ample authority to so act under the provision that airtime limits, among others, "may be amplified on by the Comelec."
I choose to part with the ponenciaat this pointas I believe that with the due process and fairness grounds firmly established, this Court should refrain from touching on other constitutional grounds, particularly on a matter as weighty as the one before us, unless we can adequately explain and support our dispositions. The oft-repeated dictum in constitutional decision-making is the exercise of judicial restraint.31 The Court will not or should not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This, to my mind, is the dictum most particularly fit for the current legal situation before us, as I will explain below.
C. The ponencia’s bases for nullifying
Comelec Resolution No. 9615
Based on its second to fifth grounds, the ponenciasuggests that even if the Comelec came up with a reasonable and adequate explanation for its new interpretation of the airtime limits under RA No. 9006, the Comelec resolution is doomed to fail because, first, it does not find support under RA No. 9006 (the statutory reason); and, second, it violates several constitutional rights (the constitutional reason).
I disagree with these cited grounds.
1. Statutory reason
RA No. 9006 provides:
Section 6. Equal Access to Media Time and Space. – All registered parties and bona fide candidates shall have equal access to media time and space. The following guidelines may be amplified on by the COMELEC.
x x x x
6.2. (a) Each bona fide candidate orregistered political party for a nationally elective office shall beentitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party.
6.3. All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within five (5) days after its signing. In every case, it shall be signed by the donor, the candidate concerned or by the duly authorized representative of the political party.
x x x x
In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar or the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstancesto make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending.
I raise three observations with respect to the ponencia’s statutory reason.
First, the ponenciahas not explained the implication of the Comelec’s power to "amplify" under Section 6 of RA No. 9006 in relation with Comelec Resolution No. 9615.
In light of the Comelec’s power to "amplify," I cannot support the ponencia’s simplistic statement that "the law, on its face, does not justify a conclusion that the allowable airtime should be based on the totality of possible broadcast in all television or radio stations." In fact, even a superficial reading of RA No. 9006 reveals that the law is silent on the basis of computing the allowable airtime limits. The ponencia should have at the very least explained the law’s silence in relation with the Comelec’s power to amplify.
Contrary to the ponencia’s observation, nothing is evident from the Sponsorship Speech of Senator Raul Roco on RA No. 9006 (that the ponenciacited) to support the conclusion that the Comelec’s interpretation is unwarranted under RA No. 9006.
Second, the fact that RA No. 9006 repealed Section 11(b) [the political advertisement ban] of RA No. 6646 has no bearing on the issueof the correct interpretation of the airtime limits under RA No. 9006. The thrust of RA No. 9006 involves a qualified, not an absolute, right to politically advertise, whether airtime limits are based on a per station or an aggregate total basis.
Third, the House and Senate bills that eventually became RA No. 9006 originally contained the phrase "per day per station" as the basis for the computation of the allowed airtime limits. According to the Comelec, the dropping of this phrasein the law reveals the intent of Congress to compute the airtime limits on an aggregate total or per candidate basis.
In rejecting the Comelec’s argument, the ponencia, again, oddly stated that this change in language "meant that the computation must not be based on a ‘per day’ basis," completely ignoring the additional "per station" qualifier that is also no longer found in the present law. These three considerations, in myview, collectively point to the inadequacy of the ponencia’s reasons in striking down Comelec Resolution No. 9615.
i. Statutory Validity of a Regulation
The Comelec’s power to "amplify" on the airtime limits would have been the key in determining whether the Comelec overstepped its limitations in the exercise of its quasi-legislative power. For a legislative rule to be valid, all thatis required is that the regulation should be germane (i.e., appropriate and relevant) to the objects and purposes of the law, and that the regulation should not contradict, but should conform with, the standards prescribed by the law.32
RA No. 9006 simply provides that "eachbona fide [national] candidate or registered political party" is "entitledto not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes ofradio advertisement."
A very basic rule in statutory construction is that words (which make up a sentence) should be construed in their ordinary and usual meaning33 and that legislative record are powerless to vary the terms of the statute when the wordings ofthe statute is otherwise clear.34
In the present case, the word "each" (defined as everyone in a group)35 pertains to the candidate and registered political parties themselves; the law then proceeds to define the limits of entitlement of "each" to radio and television advertisement to a certain number of minutes. The provision’s distinct and unambiguous wording shows that the allowable number of minutes for advertisement in radio and television refers to "each" of the candidates and registered political parties. Under the presently plain and clearwordings of the law, the allowable number of minutes does not pertain to the radio and television station themselves. Accordingly, in promulgating Comelec Resolution No. 9615, it cannot be said that the Comelec "went beyond its legal mandate" because the Comelec’s interpretation finds plain textual support from the law itself.
Pursuant to Section 4, ArticleIX-C of the 1987 Constitution, Congress enacted RA No. 9006 and declared as a matter of state principle that during the election period the State may supervise and regulate "the enjoyment or utilization of all franchises or permits for the operation of media of communication or information." The avowed purpose is to "guarantee or ensure equal opportunity for public service, including access to media time and space for public information campaigns and fora among candidates."36 After Congress enacted RA No. 9006, which by its terms textually support Comelec Resolution No. 9615, it cannot be said that the resolution is not germane to the purpose of the law or that it is inconsistent with the law itself.
ii. The Power to Amplify
If only the ponencia considered Congress’ express intent to grant the Comelec the power to "amplify"on Section 6.2 of RA No. 9006, then it would not have been blinded by its apprehensions that the Comelec’s resolution would "undermine" and "frustrate" "political exercise as an interactive process."
More than anyone else perhaps, Congress knows that weighty considerations underlie the regulation of the airtime limits of candidates and of registered political parties. As earlier discussed, these considerations include the revenues that the petitioners may potentially and directly lose under the Comelec’s "restrictive" interpretation, and the Comelec resolution’s indirect effect on the petitioners’ freedom of the press; the serious repercussionsof restrictive airtime limits on candidates’ campaign strategy and their ability to win in the elections; the perceived adverse (and/or beneficial) effect, whether true or not, of the reduction of the airtime limits under the Comelec resolution on the electorate since the elections are considered the highest form of exercise of democracy; the noble objective of leveling the playing field between and among candidates, which objective is itself constitutionally recognized;37 and the equally important and relevant state objective of regulating campaign finance.38
Since the Comelec is the body tasked by the Constitution with the enforcement and supervision of all election related laws with the power to supervise or regulate the enjoyment of franchises or permits for the operation of media of communication or information, Congress found the Comelec to be the competent body to determine, within the limits provided by Congress, the more appropriate regulation in an ever changing political landscape.
Reading RA No. 9006 and all the above considerations together, it is not difficult tograsp that the 180 and 120 minute limitations for each candidate under the law should be understood as the maximum statutory threshold for campaign advertisement. This is by the express provision of RA No. 9006. The Comelec’s on a "per station" interpretation (effective from 2004 until 2010), on the other hand, may be considered as another maximum limit for campaign advertisement,based on the Comelec’s authority to "amplify." This Comelec ruling, standing as presented, should be valid for as long as it does not exceed the statutory ceiling on a per station basis.
This interpretation, in my view, takes into account all the competing considerations that the Comelec, as the proper body, has the primary authority to judiciously weigh and consider.
To put this examination of Comelec Resolution No. 9615 in its proper context, however, I hark back to my previous statement on judicial restraint: find no clear and urgent necessity now to resolve the constitutional issues discussed in the ponencia, more especially given the manner that these issues wereapproached. I only discuss the constitutional issues to point out my concurrence and divergence from the ponencia.What we should hold, and I support the ponenciaon this point, is that Comelec Resolution No. 9615 now stands nullified on due process grounds.
2. Constitutional Reason
i. Right to Information
With due respect, I observe that the ponenciahas not fully explained how Comelec Resolution No. 9615 violates the people’s right to be duly informed about the candidates and issues, and the people’s right to suffrage. Bantay Republic Act or BA-RA 7941 v. Commission on Elections,39 which the ponencia cited, is inapplicable because that case involves an absolute refusal by the Comelec to divulge the names of nominees in the party-list election. In the present case, the Comelec is not prohibiting the candidates from placing their campaign advertisements on the air but is simply limiting the quantity of the airtime limits they may use. As previously discussed, the basis for its action and interpretation is textually found in RA No. 9006 itself.
ii. Freedom of speech
a. Candidates and political parties
The ponenciaalso claims that Comelec Resolution No. 9615 violates the candidates’ freedom ofspeech because it restricts their ability to reach out to a larger audience. While freedom of speech is indeed a constitutionally protected right, the ponenciafailed to consider that the Constitution itself expressly provides for a limitation to the enjoyment of this right during the election period.Article IX-C, Section 4 of the Constitution reads:
Section 4.The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Governmentor any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. In National Press Club v. Commission on Elections,40 the petitioner raised arguments similar to the constitutional reasons now used by the ponenciaagainst the constitutionality of Section 11(b) of RA No. 6646.41 This provision prohibits the sale or donation of airtime to political candidates but directs the Comelec’s procurement and allocation of airtime to the candidates (Comelec time).
Ruling against the claim that Section 11(b) of R.A. No. 6646 violates the freedom ofspeech, the Court in National Press Clubsaid:
x x x Withal, the rights of free speech and free press are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law."
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press.
x x x x
Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the police power of the State and the requisites for constitutionally valid exercise of that power. The essential question is whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or regulation of the operations of communication and information enterprises during an election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation of media operations during election periods.
x x x x
Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves. The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to makea crucial difference. Here lies the core problem of equalization of the situations of the candidates with deep pockets and the candidates with shallow or empty pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the statutory mechanism which Section 11 (b) brings into operation is designed and may be expected to bring about or promote equal opportunity, and equal time and space, for political candidates to inform all and sundry about themselves, cannot be gainsaid.
Six years later, another challengeagainst Section 11(b) of R.A. No. 6646 was brought before the Court in Osmena v. Comelec.42 The Court maintained its National Press Clubruling and held that unlike the other cases where the Court struck down the law or the Comelec regulation,43 the restriction of speech under Section 11(b) of RA No. 6646 is merely incidental and is no more than necessary to achieve its purpose of promoting equality of opportunity in the use of mass media for political advertising. The restriction is limited both as to time and as to scope.
In other words, the Court found Section 11(b) of R.A. No. 6646 to be a content-neutral regulation and, thus, only needs a substantial government interest to support it. Governmental interest is substantial if it passes the test formulated in the United States v. O’ Brien:44 a government regulation is sufficiently justified –
(i) if it is within the constitutional power of the Government;
(ii) if it furthers an important or substantial governmental interest;
(iii) if the governmental interest is unrelated to the suppression of free expression; and
(iv) if the incident restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.45
Accordingly, in determining whether a regulation violates freedom of speech, one must identify its nature and, concomitantly, the kind of interest that the government musthave to support it. Under this type of constitutional analysis, a first basic step for the ponenciawas to establish the nature ofComelec Resolution No. 9615 as a content-based restriction on the candidates’ freedom of speech before jumping to the conclusion that restrictions on "political speech" must be "justified by a compelling state interest.1âwphi1 " Without a clear established finding that the resolution is a content-based restriction, the Court would leave the public guessing on our basis in reaching a conclusion different from that we reached in Osmena.
In question form, are we saying that the allocation of a maximum of 180 minutes and 120 minutes of radio and television advertisements, respectively, to each national candidate (underComelec Resolution No. 9615) unduly restricts freedom of speech, while the arrangement where the Comelec shall exclusively procure "Comelec time" free of charge46 and allocate it equally and impartially among the candidates within the area of coverage of all radio and television stations does not?
If the Court answers in the affirmative, then the Court must expressly and carefully draw the line. In that event, I expressly reserve my right to modify this Opinion onthe ground that Comelec Resolution No. 9615 is a content-neutral restriction.
The absence of the required constitutional analysis is made worse by the ponencia’s citation of Buckley v. Valeo,47 a US case which declared the statutory limits on campaign expenditureunconstitutional for violating freedom of speech on the theory that speech is money. Osmena already put into serious question the applicability of the US Supreme Court’s reasoning in this case48 in our jurisdiction given the presence of Section 4, Article IX-Cin the 1987 Constitution and our own unique political and social culture. Thus, to me, citing Buckley to back up a myopic view of freedom of speech is seriously disturbing.
b. Radio and television stations
The Constitution’s approval of "[r]estricting the speech of some in order to enhance the relative voice of others" neither applies to the candidates nor to the mediumin which this speech may be made, i.e., to television and the radio stationsthemselves. During elections, the candidates and these stations go hand-in-hand, bombarding the public with all kinds of election related information one can imagine.
Under Comelec Resolution No. 9615, the "restrictions" on the airtime limits of candidates and registered political parties only indirectlyaffect the radio and broadcast stations’ more specific freedom of the press, as will be discussed below.49 If at all, it is their potential revenues that are directly affected by the Comelec resolution. But even this effect does not give them any cause to complain.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections,50 the Court ruled that radio and television stations may be compelled to grant free airtime to the Comelec for the purpose of allocating and distributing these equally among candidates since under the Constitution, their franchises may be amended for the "common good" – in this case, the public will benefit because they will be fully informed of the issues of the election.
In the present case, will we havea different result because the Comelec effectively reduces the maximum number of minutes each radio and television may sell or donate to a candidate ora registered political party? I do not think so.
It may be argued that whilethe quantity of campaign advertisements is reduced, this reduction inversely and proportionately increases the radio and television stations’ own time - the freedom of the press at its very basic51 - to actively perform their duty to assist in the functions of public information and education.52 Thus, contrary to the ponencia’s very broad statements, the press is not in any way "silenced" or "muffled under Comelec Resolution No. 9615"; what the resolution affects is merely the duration of allowable of radio and television advertisements by the candidates and registered political parties. In the same manner, under Comelec Resolution No. 9615, the radio and television networks themselves are not hindered in pursuing their respective public information campaigns and other election-related public service activity. I incidentally find the Pentagon Papers case, which the ponencia found pertinent to quote, to be simply inapplicable.
Given these observations, the ponencia's conclusion that Comelec Resolution No. 9615 is violative of the right to suffrage cannot but equally stand on very shaky constitutional ground. D. Closing
The foregoing discussions simply reinforce my view that in enacting RA No. 9006, Congress has allowed the Comelec considerable latitude in determining, within statutory limits, whether a strict or liberal application of the airtime limits in a particular election period is more appropriate. Unless the Comelec has no reasonable basis and adequate explanation for its action and unless the parties directly affected are not given opportunity to be heard on this action - as in the present case - the Court should withhold the exercise of its reviewing power.
In these lights, I submit that, unless adequately explained, the resolution of the substantive constitutional issues should be left for future consideration as they are not absolutely necessary to the resolution of this case.
ARTURO D. BRION
Associate Justice
Footnotes
1 See Comelec Minute Resolution No. 04-0113.
2 Comelec Resolution No. 6520.
3 551 Phil. 1 (2007).
4 329 Phil. 987 (1996).
5 Article IX-C, Section 2(1), 1987 Constitution.
6 Tolentino v. COMELEC, 465 Phil. 385 (2004).
7 See Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834 and 171246, April 20, 2006, 488 SCRA 1, 72.
8 Supranote 4.
9 Bedol v. Commissions on Elections, G.R. No. 179830, December 3, 2009, 606 SCRA 554.
10 See Namil v. Commission on Elections, 460 Phil. 751 (2003); and Sandoval v. Commission on Elections, 380 Phil. 375 (2000).
11 This provision reads:
Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
12 This provision reads:
Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
13 Victorias Milling Company, Inc. v. Social Security Commission, G.R. No. L-16704, March 17, 1962; Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary, G.R. No. 108524, November 10, 1994, 238 SCRA 63.
14 Republic v. Drugmakers’ Laboratories, Inc., G.R. No. 190837, March 5, 2014, citing Commissioner of Internal Revenue v. Court of Appeals, 329 Phil. 987, 1007 (1996), in turn citing Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary, G.R. No. 108524, November 10, 1994, 238 SCRA 63, 69; First National Bank of Lexington, Tennessee v. Sanders, 946 F. 2d 1185 (1991); and Animal Legal Defense Fund v. Quigg and Verity, 932 F. 2d 920, 18 USPQ. 2d 1677 (1991).
15 Republic v. Drugmakers’ Laboratories, Inc., G.R. No. 190837, March 5, 2014, citing Commissioner of Internal Revenue v. Court of Appeals, 329 Phil. 987 (1996); and Nachura, Antonio E. B., Outline Reviewer in Political Law (2009), p. 416
16 See also Tañada v. Hon. Tuvera, 230 Phil. 528 (1986).
17 Administrative Law, Law on Public Officers and Election Law, Ruben Agpalo, 2005 ed., citing Phil. Communications Satellite Corp. v. Alcuaz, 259 Phil. 707 (1989). See also Dagan, et al. v. Philippine Racing Commission, et al., 598 Phil. 406 (2009).
18 Central Bank of the Philippines v. Cloribel, 150-A Phil. 86 (1972).
19 Corona v. United Harbor Pilots Association of the Philippines, 347 Phil. 333, 342 (1997);
Philippine Consumers Foundation, Inc. v. Secretary of Education, Culture and Sports, 237 Phil. 606 (1987).
20 The Court said: "Like any other government agency, however, the CIR may not disregard legal requirements or applicable principles in the exercise of its quasi-legislative powers" and then proceeded to "distinguish between two kinds ofadministrative issuances — a legislative rule and an interpretative rule."
21 Supra note 13.
22 See Separate Opinion of Justice Josue Belosillo in Commissioner of Internal Revenue v. Court of Appeals, supranote 4.
23 While the Comelec under resolution 9615 merely "interpreted" (or more accurately, re-interpreted) the same provision of RA 9006, one should not confuse resolution 9615 simply as an interpretative rule since every election is distinct from the previous ones and different guidelines in order to ensure that the rules are updated to respond to existing circumstances (Arroyo v Department of Justice, G.R. No. 199082, September 18, 2012, 681 SCRA 181). Hence, in issuing resolution 9615, the Comelec was not simply "interpreting" the elections laws but is actually exercising its power of subordinate legislation.
24 Section 4, Article IX-C, 1987 Constitution.
25 See http://tcdn05.abs-cbnnews.com/nation/06/13/13/sans-tro-9-senate-bets-buhay-breached-adscap.
26 See Sections 100 and 101 of Batas Pambansa Blg. 881, as amended by Section 13 of RA No.7166.
27 Section 4, Article IX-C, 1987 Constitution.
28 General v. Urro, G.R. No. 191560, March 29, 2011, 646 SCRA 567.
29 Id.
30 Tolentino v. COMELEC, supranote 6.
31 In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes,the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon,the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulatedinto the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
32 Orceo v. Commission on Elections, G.R. No. 190779, March 26, 2010, 616 SCRA 684.
33 Romualdez v. Sandiganbayan, G.R. No. 152259, July 29, 2004, 435 SCRA 371.
34 See Southern Cross Cement Corporation v. Philippine Cement Manufacturers Corporation, G.R. No. 158540, July 8, 2004, 434 SCRA 65. In the present case, the ponencia does not even disclose the terms of the legislative intent which Senator Cayetano has called the Court’s attention to.
35 www.yourdictionary.com/each.
36 Section 2, RA No. 9006.
37 Section 4, Article IX-C, 1987 Constitution.
38 See Sections 100 and 101 of Batas Pambansa Blg. 881, as amended by Section 13 of RA No.7166.
39 Supranote 3.
40 G.R. No. 102653, March 5, 1992, 207 SCRA 1.
41 Section 11. Prohibited Forms of Election Propaganda.- In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcement or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.
Sections 90 and 92 of BP Blg No. 881 pertinently reads:
Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated.
x x x x
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Emphasis supplied)
42 351 Phil. 692 (1998).
43 Blo Umpar Adiong v. Commission on Elections¸ G.R. No. 103956, March 31, 1992, 207 SCRA 712; Sanidad v. Commission on Elections, G.R. No. 90878, January 29, 1990, 181 SCRA 529; and Mutuc v. COMELEC, L-32717, November 26, 1970, 36 SCRA 228.
44 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680 (1968).
45 See also Social Weather Station v.Commission on Elections, G.R. No. 147571, May 5, 2001, 357 SCRA 496.
46 Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections, Inc., 352 Phil. 153 (1998).
47 424 U.S. 1; 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
48 In Osmena v. Comelec, the Court observed:
Do those who endorse the view that government may not restrict the speech of some in order to enhance the relative voice of others also think that the campaign expenditure limitation found in our election laws is unconstitutional? How about the principle of one person, one vote, is this not based on the political equality of voters? Voting after all is speech. We speak of it asthe voice of the people- even of God. The notion that the government may restrict the speech of some in order to enhance the relative voice of others may be foreign to the American Constitution. It is not to the Philippine Constitution, being in fact ananimating principle of that document.
49 Section 4, Article III, 1987 Constitution.
50 Supra note 46.
51 See Section 24, Article II and Section 10, Article XVI of the 1987 Constitution.
52 See Section 4, RA No. 7252.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
LEONEN, J.:
I concur and vote to grant the petitions.
At issue in this case is the Commission on Elections' (COMELEC) more restrictive interpretation of Section 6.2 of Republic Act No. 9006 or the Fair Election Act resulting in further diminution of the duration of television and radio advertising that candidates may have during the 2013 elections. This section provides:
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
. . . .
6.2
a. Each bona fide candidate or registered political party for a 9 nationally elective office shall be entitled to not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall beentitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit tothe COMELEC a copy of its broadcast logs and certificates ofperformance for the review and verification of the frequency, date, time and duration of advertisements broadcast for any candidate or political party.
Prior restraint is defined as the "official governmental restrictions on the press or other forms of expressionin advance of actual publication or dissemination."1 Prior restraints of speech are generally presumptively unconstitutional. The only instances when this is not the case are in pornography,2 false and misleading advertisement,3 advocacy of imminent lawless action,4 and danger to national security.5
Section 6 of the Fair Election Act is a form of prior restraint. While it does not totally prohibit speech, it has the effect of limitations in terms of the candidates’ and political parties’ desired time duration and frequency.
When an act of government is in prior restraint of speech, government carries a heavy burden of unconstitutionality.6 In Iglesia ni Cristo v. Court of Appeals,7 this court said that "any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows."8 This is the only situation where we veer away from our presumption of constitutionality.9
In the context of elections, this court declared as unconstitutional the acts of the Commission on Elections inprohibiting the playing of taped jingles,10 disallowing newspaper columnists to express their opinion on a plebiscite,11 and limiting the publication of election surveys.12 However, this presumption, though heavy, is not insurmountable.
Generally, there are very clear constitutionally defined and compelling interests to limit the speech of candidates and political parties. Article IX-C, Section 4 of the Constitution provides: Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessionsgranted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free orderly honest, peaceful, and credible elections.(Emphasis supplied)
In addition, the Commission on Elections has been given the competence to minimize election spendingin Section 2(7) of Article IX-C of the Constitution:
Section 2. The Commission on Elections shall exercise the following powers and functions:
. . . .
(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.
In National Press Club v. COMELEC,13 this court considered the prohibition on the sale and donation of space and time for political advertisement provided in Section 11(b) of Republic Act No. 6646.14 This court recognized that though freedom ofspeech is a preferred right in our constitutional hierarchy, it is not unlimited.15 There are other constitutional values that should also be considered including the equalization of opportunities for candidates.16 This idea was echoed in Osmeña v. COMELEC.17 This court found that the "restriction on speech is only incidental, and it is no more than isnecessary to achieve its purpose of promoting equality of opportunity inthe use of mass media for political advertising."18 In Osmeña, this court noted the silence of the legislature in amending Section 11(b) of Republic Act No. 6646.19
Thus, in 2001, the Fair Election Act20 was promulgated, repealing the challenged provisions in National Press Cluband Osmeña. Congress determined that the old law was not effective in giving voice to the people.21 It shifted state policy by liberalizing the granting of time and space to candidates and political parties while maintaining equality in terms of duration of exposure.22
Section 6 of the Fair Election Act is a
form of prior restraint
It is recognized that Section 6 of the Fair Election Act does not completely prohibit speech. However, the provision effectively limits speech in terms of time duration and frequency. Admittedly, the present wording of Section 6 of the Fair Election Act does not clearly imply whether the one hundred twenty (120) minutes of television advertisement and the one hundred eighty (180) minutes of radio advertisement allotted to each candidateor registered political party is for each network or is an aggregate timefor all such advertisements, whether paid or donated, during the entire election period. However, during the 200723 and the 201024 elections, the Commission on Elections allowed candidates and registered political parties to advertise as much as 120 minutes of television advertisement and 180 minutes of radio advertisement per station.
For the 2013 elections, however, respondent Commission on Elections, without hearing, issued Resolution No. 9615, Section 9(a) which now interprets the 120/180 minute airtime to be on a "total aggregate basis." This section provides:
SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. - All parties and bona fide candidates shall have equal access to media time and space for their election propaganda during the campaign period subject to the following requirements and/or limitations:
a. Broadcast Election Propaganda:
The duration of air time that a candidate, or party may use for their broadcast advertisements or election propaganda shall be, as follows:
| For Candidates / Registered Political parties for a National Elective Position |
Not more than an aggregate total of one hundred (120) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and one hundred eighty (180) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation. |
| For Candidates / Registered Political parties for a Local Elective Position |
Not more than an aggregate total of sixty (60) minutes of television advertising, whether appearing on national, regional, or local, free or cable television, and ninety (90) minutes of radio advertising, whether airing on national, regional, or local radio, whether by purchase or donation. |
In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias, color motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned together in the broadcast election propaganda or advertisements, the length of time during which they appear or are being mentioned or promoted will be counted against the airtime limits allotted for the said candidates or parties and the cost of the said advertisement will likewise be considered as their expenditures, regardless of whoever paidfor the advertisements or to whom the said advertisements were donated.
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary, or on-the-spotcoverage of bona fide news events, including but not limited to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision. To determine whether the appearance or guesting in a program is bona fide, the broadcast stations or entities must show that: (1) prior approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules.
Provided, further, that a copy of the broadcast advertisement contract be furnished to the Commission, thru the Education and Information Department, within five (5) days from contract signing.
The issuance caused petitioners to send their respective letters to respondent to clarify and/or protest against the new regulations. It was only then that respondent Commission on Elections held a public hearing.25 Respondent then issued Resolution No. 9631 amending certain provisions of Resolution No. 9615, Section 9(a), without touching on the "total aggregate" interpretation of Section 6 of the Fair Election Act.26
In addition to the television and radio networks represented in the various petitions, a candidate for the senatorial elections, Alan Peter Cayetano, also filed an intervention.27
Whether the airtime in television and radio spots ofcandidates and registered political parties may be regulated is not an issue in this case. Indeed, the Constitution clearly allows this for purposes of providing equal opportunity to all candidates.28 The issue is also not whether Congress, in promulgating Section 6 of the Fair Election Act, committed grave abuse of discretion in determining a cap of 120 minutes advertising for television and 180 minutes for radio. It is within the legislature’s domain to determine the amount of advertising sufficient to balance the need to provide information to voters and educate the public on the one hand, and to cause the setting of an affordable price to most candidates that would reduce their expenditures on the other. We are not asked to decide in these cases whether these actual time limitations hurdle the heavy burden of unconstitutionality that attends to any prior limitations on speech. Rather, petitioners and the intervenor raise constitutional objections to a second order of restriction: that the interpretation earlier allowed by the Commission on Elections was suddenly, arbitrarily, and capriciously reduced by adopting the "total aggregate" method.
While the Commission on Elections does have the competence to interpret Section 6, it must do so without running afoul of the fundamental rights enshrined in our Constitution, especially of the guarantee of freedom of expression and the right to suffrage. Not only mustthe Commission on Elections have the competence, it must also be cognizant of our doctrines in relation to any kind of prior restraint.
It has failed to discharge this burden.
A more restrictive interpretation of Section 6 will not necessarily meet the Commission on Elections’ expected economic benefits
The Commission on Elections hinges the shift in the interpretation of Section 6 of the Fair Election Act on its constitutional power to recommend to Congress effectivemeasures to minimize election spending.29 During the January 31, 2013 public hearing, COMELEC Chairman Brillantes said:
Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually to level the playing field. That should be the paramount consideration. If we allow everybody to make use of all their time and all radio time and TV time then there will be practically unlimited use of the mass media. . . .30
On a cursory look, it will seem asif a reduction in the length of airtime allowable per candidate will translate to a reduction in a candidate’s election spending. For example, under the old regulation of giving 120 minutes "per network," it would mean that if the candidate wanted to broadcast on two (2) television networks, the candidate could purchase a total of 240 minutes. The total campaign expenditure for television advertisements would be 240 minutes multiplied by the rate for television advertisements per minute, say, ₱500,000.00. The candidate would have to spend a total of ₱120 million for 240 minutes of television advertisements. Under the new regulation of giving 120 minutes to the candidate in an "aggregate total," the candidate would have to distribute the 120 minutes between the two (2) networks. The 120 minutes multiplied by ₱500,000.00 is only ₱60 million. The reduction in expenditure is obvious under this example. However, the previous example is a simplistic view starkly different from our economic realities. This assumes that the regulation would not affect the prices charged by the networks. A more realistic economic possibility is that the restriction in airtime allotment of candidates will increase the prices of television and radio spots. This can happen because the limitation in the airtime placed on each candidate will increase his or her willingness to pay for television spots at any price. This will be the perfect opportunity for television networks to hike up their prices. For instance, these networks can increase their usual rates of ₱500,000.00/minute to ₱1,000,000.00/minute. The candidate will take the airtime at this rate because of the inevitable need for the campaign to be visible to the public eye. At this rate, it will cost a candidate 120 million to air 120 minutes.
This is the same price to be paid had it been under the old regulation; hence, the candidate’s election spending will notbe minimized. In fact, it will even increase the cost per unit of airtime. Ideally, television and radio stations should bid and compete for a candidate’s or a political party's airtime allocation, so that instead of networks dictating artificially high prices for airtime (which price will be high as television and radio stations are profit-driven), the market will determine for itself the price. The market for airtime allocation expands, and a buyer's market emerges with low prices for airtime allocation. This situation assumes that in the market for airtime allocation, television and radio networks are the same in terms of audience coverage and facilities.
What Resolution No. 9615 does not take into consideration is that television and radio networks are not similarly situated. The industry structure consists of network giants31 with tremendous bargaining powers that dwarf local community networks. Thus, a candidate with only a total aggregate of 120/180 minutes of airtime allocation will choose a national network with greater audience coverage to reach more members of the electorate. Consequently, the big networks can dictate the price, which it can logically set at a higher price to translate to more profits. This is true in any setting especially in industries with high barriers to entry and where there are few participants with a high degree of market dominance. Reducing the airtime simply results in a reduction of speech and not a reduction of expenses.
Resolution No. 9615 may result in local community television and radio networks not being chosen by candidates running for national offices. Hence, advertisement by those running for national office will generally be tailored for the national audience. This new aggregate time may, therefore, mean that local issues which national candidates should also address may not be the subject of wide-ranging discussions.
Candidates’ expenses are still limitedby existing regulations that peg total allowable expenditures based on the number of votes. Even with aggregate airtime limits being allowed on a per station basis, the limits on expenditures remain the same. In other words, the limits in candidate expenses are already set and are independent of whether aggregate time is total airtime or per station.
Each candidate decides what media they will avail to allow for efficiency, i.e., the most impact with the broadest audience and with the least cost. All candidate’s limits will be the same. Limiting airtime to only a total of 120/180 minutes per candidate or political party will most likely only succeed in caricaturing debate, enriching only the more powerful companies in the media sector and making it more prohibitive for less powerful candidates to get their messages across. There is no showing from respondent Commission on Elections of any study that the "total aggregate basis" interpretation will indeed minimize election spending. It did not show that this would better serve the objective of assisting the poorer candidates. The relationship between the regulation and constitutional objective must be morethan mere speculation. Here, the explanation respondent Commission on Elections gave is that it has the power to regulate. As COMELEC Chairman Brillantes said during the January 31, 2013 public hearing:
No, the change is not there, the right to amplify is with the Commission on Elections.1awp++i1 Nobody canencroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that isthe prerogative of the Commission then they could amplify it to expand it.If the current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that is our prerogative.How can you encroach and what is unconstitutional about it?32 (Emphasis supplied)
We emphasize that where a governmental act has the effect of preventing speech before it is uttered, it is the burden of government and not of the speaker to justify the restriction in terms which are clear to this court. Article III, Section 4 of the Constitution which provides for freedom of expression occupies such high levels of protection that its further restriction cannot be left to mere speculation.
Contrary to COMELEC Chairman Brillantes’ statement, this court will step in and review the Commission on Elections’ right to amplify if it infringes on people's fundamental rights. What the Commission "feels," even if it has the prerogative, will never be enough to discharge its burden of proving the constitutionality of its regulations limiting the freedom of speech.
Election regulations are not alwayscontent-neutral regulations, and even if they were, they do not necessarily carry a mantle of immunity from free speech scrutiny. The question always is whether the regulations are narrowly tailored so as to meet a significant governmental interest and so that there is a lesser risk of excluding ideas for a public dialogue.33 The scrutiny for regulations which restrict speech during elections should be greater considering that these exercises substantiatethe important right to suffrage. Reducing airtime to extremely low levels reduces information to slogans and sound bites which may impoverish public dialogue. We know that lacking the enlightenment that comes with information and analysis makes the electorate’s role to exact accountability from elected public officers a sham. More information requires more space and airtime equally available to all candidates. The problemin this case is that the Commission on Elections does not seem tohave the necessary basis to justify the balance it wanted to strike with the imposition of the aggregate time limits.
Just because it is called electoral reform does not necessarily make it so.
The standard of analysis for prior restraints on speech is well-known to all legal practitioners especially tothose that may have crafted the new regulations. Good intentions are welcome but may not be enough if the effect would be to compromise our fundamental freedoms. It is this court’s duty to perform the roles delegated to it by the sovereign people. In a proper case invoking this court’s powers of judicial review, it should sometimes result in more mature reflection by those who do not benefit from its decisions. The Commission on Elections does not have a monopoly of the desire for genuine electoral reform without compromising fundamental rights. Our people cannot be cast as their epigones.
Fundamental rights are very serious matters. The core of their existence is not always threatened through the crude brazen acts of tyrants. Rather, it can also be threatened by policies that are well-intentioned but may not have the desired effect in reality.
We cannot do justice to hard-won fundamental rights simply on the basis of a regulator’s intuition. When speech and prior restraints are involved, it must always be supplemented by rigorous analysis and reasoned evidence already available for judicial review.
Thus, I vote to PARTIALLY GRANT the petitions. Section 9(a) of Resolution No. 9615 is unconstitutional and is, therefore, NULL and VOID. This has the effect of reinstating the interpretation of the Commission on Elections with respect to the airtime limits in Section 6 of the Fair Elections Act. I vote to DEN:Y the constitutional challenge to Sections 7(d) and 14 of COMELEC Resolution 9615, as amended by Resolution 9631.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
Footnotes
1 Chavez v. Gonzales, 569 Phil. 155, 203 (2008) [Per C.J. Puno, En Banc].
2 Soriano v. Laguardia, 605 Phil. 43 (2009) [Per J. Velasco, Jr., En Banc]; Pita v. Court of Appeals, 258-A Phil. 134 (1989) [Per J. Sarmiento, En Banc]; Gonzalez v. Katigbak, 222 Phil. 225 (1985) [Per C.J. Fernando, En Banc].
3 Chavez v. Gonzales,569 Phil. 155 (2008) [Per C.J. Puno, En Banc]; Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III, 561 Phil. 386 (2007) [Per Austria-Martinez, En Banc].
4 Eastern Broadcasting Corporation v. Dans, Jr.,222 Phil. 151 (1985) [Per J. Gutierrez, Jr., En Banc].
5 Id.
6 Iglesia ni Cristo v. CA, 328 Phil. 893, 928 (1996) [Per J. Puno, En Banc], citing Near v. Minnesota, 283 US 697 (1931); Bantam Books Inc. v. Sullivan, 372 US 58 (1963); New York Times v. United States, 403 US 713 (1971); See also Social Weather Station v. COMELEC,409 Phil. 571, 584–585 (2001) [Per J. Mendoza, En Banc], citing New York Times v. United States, 403 U.S. 713, 714, 29 L.Ed. 2d 822, 824 (1971).
7 328 Phil. 893 (1996) [Per J. Puno, En Banc].
8 Id. at 928.
9 See Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 387 [Per J. Mendoza, En Banc], citing Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140 [Per J. Cruz, En Banc]; See also Osmeña v. COMELEC, 351 Phil. 692 (1998) [Per J. Mendoza, En Banc]; National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA1 [Per J. Feliciano, En Banc]; Angara v. Electoral Commission,63 Phil. 139 (1936) [Per J. Laurel, En Banc].
10 Mutuc v. COMELEC, 146 Phil. 798 (1970) [Per J. Fernando, En Banc], citedas prior restraint in Osmeña v. COMELEC, 351 Phil. 692, 707 (1998) [Per J. Mendoza, En Banc].
11 Sanidad v. COMELEC, 260 Phil. 565 (1990) [Per J. Medialdea, En Banc], citedas prior restraint in Osmeña v. COMELEC, 351 Phil. 692, 718 (1998) [Per J. Mendoza, En Banc].
12 Social Weather Station v. COMELEC,409 Phil. 571 (2001) [Per J. Mendoza, En Banc].
13 G.R. No. 102653, March 5, 1992, 207 SCRA 1 [Per J. Feliciano, En Banc].
14 Rep. Act 6646, sec. 11 provides:
Sec. 11. Prohibited Forms of Election Propaganda. - In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
. . . .
b. for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.
15 "It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election period." It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the press in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process by which the people identify those who shall have governance over them. Thus, it is frequently said that these rights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that ‘the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.’" National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 9 [Per J. Feliciano, En Banc], with a voting of 11-3.
16 CONST., art. IX-C, sec. 4 provides:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.(Emphasis supplied)
17 351 Phil. 692 (1998) [Per J. Mendoza, En Banc].
18 Id. at 711, with a voting of 11-4.
19 "The fact is that efforts have been made to securethe amendment or even repeal of §11(b) of R.A. No. 6646. No less than five bills were filed in the Senate in the last session of Congress for this purpose, but they all failed of passage. Petitioners claim it was because Congress adjourned without acting on them. But that is just the point. Congress obviously did not see it fit to act on the bills before it adjourned.
We thus have a situation in which an act of Congress was found by this Court to be valid so that those opposed to the statute resorted to the legislative department. The latter reconsidered the question but after doing so apparently found no reason for amending the statute and therefore did not pass any of the bills filed to amend or repeal the statute. Mustthis Court now grant what Congress denied to them? The legislative silence here certainly bespeak of more than inaction." Osmeña v. COMELEC, 351 Phil. 692, 716–717 (1998) [Per J. Mendoza, En Banc].
20 Rep. Act No. 9006 (2001).
21 Rep. Act No. 9006 (2001), sec. 14 provides:
Section 14. Repealing Clause. - Section 67 and 85 of the Omnibus Election Code (Batas Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.
22 See Rep. Act No. 9006 (2001), sec. 6.2(b), which provides:
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to media timeand space. The following guidelines may be amplified on by the COMELEC:
. . . .
6.2 b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.
23 COMELEC Resolution No. 7767 (2006), sec. 13(1), as amended by COMELEC Resolution No. 7836 (2007).
24 COMELEC Resolution No. 8758 (2010), sec. 11(a),provides that for candidates and registered political parties for a national elective position, the limitations were "One hundred twenty (120) minutes in television or cable television and one hundred eighty (180) minutes in radio, for all television or cable television networks, or all radio stations whether by purchase or donation, wherever located, per station." The phrase "aggregate total" was introduced in COMELEC Resolution No. 9615 (2013) questioned here, with the phrases "for all television and cable television networks, or all radio stations" and "per station" not appearing.
25 Respondent COMELEC held a publichearing on January 31, 2013.
26 COMELEC Resolution No. 9631, par. 5, amended COMELEC Resolution No. 9615, sec. 9(a), to wit:
5. The third (3 rd ) paragraph of Section 9 (a) on the "Requirements and/or Limitations on the Use of Election Propaganda through Mass Media"is revised and amended to read: "Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that parties and candidates were afforded equal opportunities to promote their candidacy, the media entity shall give prior notice to the COMELEC, through the appropriate Regional Election Director (RED), or in the case of the National Capital Region (NCR), the Education and Information Department (EID). If such prior notice is not feasible or practicable, the notice shall be sent within twenty-four (24) hours from the first broadcast or publication. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules." (Emphasis in the original)
27 In G.R. No. 205357, intervenor assails Section 9(a) of Resolution No. 9615, which changed the interpretation of the 120/180-minute rule from "per station" to "total aggregate" basis.
28 CONST., art. IX-C, sec. 4 provides:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space,and the right to reply,including reasonable, equal ratestherefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)
29 CONST., art. IX-C, sec. 2(7).
30 Main opinion, p. 24.
31 "The Philippines probably presents the most diverse media picture in the region, with a wide variety of broadcasters, both radio and television, operating both nationally and locally. At the same time, the leading media houses are very commercialised, with ownership concentrated mainly in the hands of large companies or family businesses. There is also burgeoning and essentially unregulated radio market where "block timers" purchase time to espouse their views, which has been blamed for the growing lack of public trust in the media." See T. Mendel, Audiovisual media policy, regulation and independence in Southeast Asia<http://www.opensocietyfoundations.org/sites/default/files/ audiovisual-policy-20100212.pdf> (visited September 1, 2014).
32 Main opinion, p. 23.
33 Chavez v. Gonzales, 569 Phil. 155, 205 (2008) [Per C.J. Puno, En Banc]; See Ward v. Rock Against Racism, 491 U.S. 781 (1989), quoting Clark v. Community for Creative Non-Violence,468 U.S. 288, 293 (1984); See also Turner Broad. System, Inc. v. Federal Communications Commission, 512 U.S. 622, 642 (1994); City of Ladue v. Gilleo, 512 U.S. 43, 54–59 (1994).
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