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Social Weather Stations, Inc. vs. Commission on Elections

*
G.R. No. 147571. May 5, 2001.

SOCIAL WEATHER STATIONS, INCORPORATED and

KAMAHALAN PUBLISHING CORPORATION, doing
business as MANILA STANDARD, petitioners, vs.
COMMISSION ON ELECTIONS, respondent.

Constitutional Law; Freedom of Speech and Press; Section 5.4

of Republic Act 9006 (Fair Election Act) lays a prior restraint on
freedom of speech, expression, and the press.—To be sure, §5.4 lays
a prior restraint on freedom of speech, expression, and the press
by prohibiting the publication of election survey results affecting
candidates within the prescribed

_____________

* EN BANC.

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Social Weather Stations, Inc. vs. Commission on Elections

periods of fifteen (15) days immediately preceding a national

election and seven (7) days before a local election. Because of the
preferred status of the constitutional rights of speech, expression,
and the press, such a measure is vitiated by a weighty
presumption of invalidity. Indeed, “any system of prior restraints
of expression comes to this Court bearing a heavy presumption
against its constitutional validity. . . . The Government ‘thus
carries a heavy burden of showing justification for the
enforcement of such restraint.’ “ There is thus a reversal of the
normal presumption of validity that inheres in every legislation.

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Same; Same; There is no basis for the Commission on

Elections’ (COMELEC) claim that this petition for prohibition is
inappropriate; Prohibition has been found appropriate for testing
the constitutionality of various election laws, rules, and
regulations.—On the other hand, the COMELEC contends that
under Art. IX-A, §7 of the Constitution, its decisions, orders, or
resolutions may be reviewed by this Court only by certiorari. The
flaws in this argument is that it assumes that its Resolution 3636,
dated March 1, 2001 is a “decision, order, or resolution” within the
meaning of Art. IX-A, §7. Indeed, counsel for COMELEC
maintains that Resolution 3636 was “rendered” by the
Commission. However, the Resolution does not purport to
adjudicate the right of any party. It is not an exercise by the
COMELEC of its adjudicatory power to settle the claims of
parties. To the contrary, Resolution 3636 clearly states that it is
promulgated to implement the provisions of R.A. No. 9006. Hence,
there is no basis for the COMELEC’s claim that this petition for
prohibition is inappropriate. Prohibition has been found
appropriate for testing the constitutionality of various election
laws, rules, and regulations.

MELO, J., Concurring Opinion:

Constitutional Law; Freedom of Speech and Press; The

prohibition against surveys within the specified period is a prior
and unreasonable restraint upon the freedom of expression.—To
reiterate, the prohibition against surveys within the specified
period is a prior and unreasonable restraint upon the freedom of
expression which is not reasonably necessary to achieve the
purpose of clean, honest, orderly and peaceful elections. For the
foregoing reasons, I vote to grant the petition for prohibition and
to declare Section 5.4 of R.A. No. 9006 unconstitutional.

KAPUNAN, J., Dissenting Opinion:

Constitutional Law; Freedom of Speech and Press; The

freedoms of speech and of the press are not absolute or unlimited.
—Although among

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our most cherished rights, the freedoms of speech and of the press
are not absolute or unlimited. In certain instances, this Court has
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allowed the regulation of the exercise of these freedoms vis-a-vis

election-related laws. In Osmeña vs. Commission on Elections and
National Press Club vs. Commission on Elections, the law
prohibiting newspapers, radio broadcasting and television station
from selling or giving free of charge print space or air time for
campaign or other political purposes was declared valid. In Badoy
vs. Commission of Elections, the prohibition on the publication of
paid political advertisements outside the COMELEC space was
likewise upheld. In Gonzales vs. Commission on Elections, where
the prohibition on the early nomination of candidates and the
limitation on the period of election campaign or partisan political
activity under Republic Act No. 4880 was assailed for being
violative of the freedoms of speech, of the free press, of assembly
and of association, the Court declared the law not
unconstitutional.
Same; Same; Congress may not only regulate the time,
manner and place of the holding of the elections but may likewise
regulate the election campaigns and other activities relative
thereto.—Indisputably, the State has a legitimate interest in
fostering an informed electorate. It has a compelling interest in
protecting voters from confusion and undue influence and,
generally, in preserving the integrity of its election process. In
furtherance of these State interests, Congress is empowered to
enact laws relative to the conduct of elections. It may not only
regulate the time, manner and place of the holding of the elections
but may likewise regulate the election campaigns and other
activities relative thereto.
Same; Same; Section 5.4 is a mere restriction not an absolute
prohibition on the publication of election surveys.—Viewed in the
light of the legitimate and significant objectives of Section 5.4, it
may be seen that its limiting impact on the rights of free speech
and of the press is not unduly repressive or unreasonable. Indeed,
it is a mere restriction, not an absolute prohibition, on the
publication of election surveys. It is limited in duration; it applies
only during the period when the voters are presumably
contemplating whom they should elect and when they are most
susceptible to such unwarranted persuasion. These surveys may
be published thereafter.

SPECIAL CIVIL ACTION in the Supreme Court.

Prohibition.

The facts are stated in the opinion of the Court.

          Quiason, Makalintal, Barot, Torres & Ibarra for
petitioners.

499

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VOL. 357, MAY 5, 2001 499

Social Weather Stations, Inc. vs. Commission on Elections

     The Solicitor General for respondent.

MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private

non-stock, non-profit social research institution conducting
surveys in various fields, including economics, politics,
demography, and social development, and thereafter
processing, analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan
Publishing Corporation publishes the Manila Standard, a
newspaper of general circulation, which features
newsworthy items of information including election
surveys.
Petitioners brought this action for prohibition to enjoin
the Commission on Elections from enforcing §5.4 of R.A.
No. 9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published

fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an
election.

The term “election surveys” is defined in §5.1 of the law as

follows:

Election surveys refer to the measurement of opinions and

perceptions of the voters as regards a candidate’s popularity,
qualifications, platforms or a matter of public discussion in
relation to the election, including voters’ preference for candidates
or publicly discussed issues during the campaign period (hereafter
referred to as “Survey”).

To implement §5.4, Resolution 3636, §24(h), dated March 1,

2001, of the COMELEC enjoins—

Surveys affecting national candidates shall not be published

fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an
election.

Petitioner SWS states that it wishes to conduct an election

survey throughout the period of the elections both at the
national and local levels and release to the media the
results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other
hand, states that it intends to publish
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election survey results up to the last day of the elections on

May 14, 2001.
Petitioners argue that the restriction on the publication
of election survey results constitutes a prior restraint on
the exercise of freedom of speech without any clear and
present danger to justify such restraint. They claim that
SWS and other pollsters conducted and published the
results of surveys prior to the 1992, 1995, and 1998
elections up to as close as two days before the election day
without causing confusion among the voters and that there
is neither empirical nor historical evidence to support the
conclusion that there is an immediate and inevitable
danger to the voting process posed by election surveys.
They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers
or broadcast media from writing and publishing articles
concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for
ordinary voters to be denied access to the results of election
surveys which are relatively objective.
Respondent Commission on Elections justifies the
restrictions in §5.4 of R.A. No. 9006 as necessary to prevent
the manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the
election. It contends that (1) the prohibition on the
publication of election survey results during the period
proscribed by law bears a rational connection to the
objective of the law, i.e., the prevention of the debasement
of the electoral process resulting from manipulated
surveys, bandwagon effect, and absence of reply; (2) it
narrowly tailored to meet the “evils” sought to be
prevented; and (3) the impairment of freedom of expression
is minimal, the restriction being limited both in duration,
i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does
not prohibit election survey results but only require
timeliness. Respondent
1
claims that in National Press Club
v. COMELEC, a total ban on political advertisements, with
candidates being merely allocated broadcast time during
the so-called COMELEC space or COMELEC hour, was

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1 207 SCRA 1 (1992).

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upheld by this Court. In contrast, according to respondent,

it states that the prohibition in §5.4 of R.A. No. 9006 is
much more limited.
For reasons hereunder given, we hold that §5.4 of R.A.
No. 9006 constitutes an unconstitutional abridgment of
freedom of speech, expression, and the press.
To be sure, §5.4 lays a prior restraint on freedom of
speech, expression, and the press by prohibiting the
publication of election survey results affecting candidates
within the prescribed periods of fifteen (15) days
immediately preceding a national election and seven (7)
days before a local election. Because of the preferred status
of the constitutional rights of speech, expression, and the
press, such a 2measure is vitiated by a weighty presumption
of invalidity. Indeed, “any system of prior restraints of
expression comes to this Court bearing a heavy
presumption against its constitutional validity. . . . The
Government ‘thus carries a heavy burden of showing 3
justification for the enforcement of such restraint.’ “ There
is thus a reversal of the normal presumption of validity
that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, §4 of the
Constitution, which gives the COMELEC supervisory
power to regulate the enjoyment or utilization of franchise
for the operation of media of communication, no
presumption of invalidity attaches to a measure like §5.4.
For as we have pointed out in sustaining the ban on media
political advertisements, the grant of power to the
COMELEC under Art. IX-C, §4 is limited to ensuring
“equal opportunity, time, space, and the right to reply” as
well as uniform and reasonable rates of charges for the use
of such media facilities for “public
4
information campaigns
and forums among candidates.” This Court stated:

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

_____________

2 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988).

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3 New York Times v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 824
(1971).
4 National Press Club v. COMELEC, 207 SCRA 1 (1992); Osmena v.
COMELEC, 288 SCRA 447 (1998).

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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
result5 in some limitation of the rights of free speech and free
press.

MR. JUSTICE KAPUNAN dissents. He rejects as

inappropriate the test of clear and present danger for
determining the validity of §5.4. Indeed, 6
as has been
pointed out in Osmeña v. COMELEC, this test was
originally formulated for the criminal law and only later
appropriated for free speech cases. Hence, while it may be
useful for determining the validity of laws dealing with
inciting to sedition or incendiary speech, it may not be
adequate for such regulations as the one in question. For
such a test is concerned with questions of the gravity and
imminence of the danger as basis for curtailing free speech,
which is not the case of §5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage
in a form of balancing by “weighing and balancing the
circumstances to determine whether public interest [in
free, orderly, honest, peaceful and credible elections] is
served by the regulation of the free enjoyment of the rights”
(page 7). After canvassing the reasons for the prohibition,
i.e., to prevent last-minute pressure on voters, the creation
of bandwagon effect to favor candidates, misinformation,
the “junking” of weak and “losing” candidates by their
parties, and the form of election cheating called “dagdag-
bawas” and invoking the State’s power to supervise media
of information during the election period (pages 11-16), the
dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of

Section 5.4, it may be seen that its limiting impact on the rights of
free speech and of the press is not unduly repressive or
unreasonable. Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It is limited in
duration; it applies only during the period when the voters are
presumably contemplating whom they should elect
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____________

5 National Press Club v. COMELEC, supra at 9.

6 288 SCRA 447 (1998).

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and when they are most susceptible to such unwarranted

persuasion. These surveys may be published thereafter. (Pages
17-18)

The dissent does not, however, show why, on balance, these

considerations should outweigh the value of freedom of
expression. Instead, reliance is placed on Art. IX-C, §4. As
already stated, the purpose of Art. IX-C, §4 is to “ensure
equal opportunity, time, and space and the right of reply,
including reasonable, equal rates therefor for public
information campaigns and forums among candidates.”
Hence the validity of the ban on media advertising. It is
noteworthy that R.A. No. 9006, §14 has lifted the ban and
now allows candidates to advertise their candidacies in
print and broadcast media. Indeed, to sustain the ban on
the publication of survey results would sanction the
censorship of all speaking by candidates in an election on
the ground that the usual bombasts and hyperbolic claims
made during the campaigns can confuse voters and thus
debase the electoral process.
In sum, the dissent has engaged only in a balancing at
the margin. This form of ad hoc balancing predictably
results in sustaining the challenged legislation and leaves
freedom of speech, expression, and the press with little
protection. For anyone who can bring a plausible
justification forward can easily show a rational connection
between the statute and a legitimate governmental
purpose. In contrast, the balancing of interest undertaken
7
by then Justice Castro in Gonzales v. COMELEC, from
which the dissent in this case takes its cue, was a strong
one resulting in his conclusion that §50-B of R.A. No. 4880,
which limited the period of election campaign and partisan
political activity, was an unconstitutional abridgment of
freedom of expression.
Nor can the ban on election surveys be justifies on the
ground that there are other countries—78, according to the
Solicitor General, while the dissent cites 28—which
similarly impose restrictions on the publication of election
surveys. At best this survey is inconclusive. It is
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noteworthy that in the United States no restriction on the

publication of election survey results exists. It cannot be
argued that this is because the United States is a mature
democracy.

______________

7 27 SCRA 835, 888 (1969) (Castro, J., concurring and dissenting).

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Neither are there laws imposing an embargo on survey

results, even for a limited period, in other countries. As
pointed out by petitioners, the United Kingdom, Austria,
Belgium, Denmark, Estonia, Finland, Iceland, Ireland,
Latvia, Malta, Macedonia, the Netherlands, Norway,
Sweden, and Ukraine, some of which are no older nor more
mature than the Philippines in political development, do
not restrict the publication of election survey results.
What test should then be employed to determine the
constitutional validity of §5.4? The United States Supreme
Court, through Chief Justice Warren, held in United States
v. O’Brien:

[A] government regulation is sufficiently justified [1] if it is within

the constitutional power of the Government; [2] if it furthers 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 alleged First
Amendment freedoms [of speech, expression and press]8 is no
greater than is essential to the furtherance of that interest.

This is so far the most influential test for distinguishing

content-based from content-neutral regulations and is9 said
to have “become canonical in the review of such laws.” It is
noteworthy that the O’Brien 10
test has been applied by this
Court in at least two cases.
Under this test, even if a law furthers an important or
substantial governmental interest, it should be invalidated
if such governmental interest is “not unrelated to the
suppression of free expression.” Moreover, even if the
purpose is unrelated to the suppression of free speech, the
law should nevertheless be invalidated if the restriction on
freedom of expression is greater than is necessary to
achieve the governmental purpose in question.

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Our inquiry should accordingly focus on these two

considerations as applied to §5.4.

_______________

8 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680 (1968) (bracketed numbers
added).
9 G. GUNTHER & K. SULLIVA, CONSTITUTIONAL LAW 1217 (13th
ed. 1997).
Adiong v. COMELEC, 207 SCRA 712 (1992); Osmeña v. COMELEC,
10

supra.

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First. Sec. 5.4 fails to meet criterion [3] of the O’Brien test
because the causal connection of expression to the asserted
governmental interest makes such interest “not unrelated
to the suppression of free expression.” By prohibiting the
publication of election survey results because of the
possibility that such publication might undermine the
integrity of the election, §5.4 actually suppresses a whole
class of expression, while allowing the expression of opinion
concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair
theorists, and other opinion makers. In effect, §5.4 shows a
bias for a particular subject matter, if not viewpoint, by
preferring personal opinion to statistical results. The
constitutional guarantee of freedom of expression means
that “the government has no power to restrict expression
because of11
its message, its ideas, its subject matter, or its
content.” The inhibition of speech should be upheld only if
the expression falls within one of the few unprotected 12
categories dealt with in Chaplinsky v. New Hampshire,
thus:

There are certain well-defined and narrowly limited classes of

speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and the insulting or
‘fighting’ words—those which by their very utterance inflict injury
or tend to incite an immediate breach of the peace. [S]uch
utterances are no essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social
interest in order and morality.

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Nor is there justification for the prior restraint

13
which §5.4
lays protected speech. In Near v. Minnesota, it was held:

________________

11 Police Dept. v. Moshley, 408 U.S. 92, 95, 33 L. Ed. 2d. 212, 216
(1972).
12 315 U.S. 568, 571-572, 86 L. Ed. 1031, 1035 (1942). See John Hart
Ely, Flag Desecration: A Case Study in the Roles of Categorization and
Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1497
(1975).
13 283 U.S. 697, 715-16, 75 L. Ed. 1357, 1367 (1931); See also New York
Times v. United States, 403 U.S. 7-13, 29 L. Ed. 2d. 822 (1971).

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[The] protection even as to previous restraint is not absolutely

unlimited. But the limitation has been recognized only in
exceptional cases . . . . No one would question but that a
government might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of transports or the
number and location of troops. On similar grounds, the primary
requirements of decency may be enforced against obscene
publications. The security of the community life may be protected
against incitements to acts of violence and the overthrow by force
of orderly government . . . .

Thus, contrary to the claim of the Solicitor General, the

prohibition imposed by §5.4 cannot be justified on the
ground that it is only for a limited period and is only
incidental. The prohibition may be for a limited time, but
the curtailment of the right of expression is direct,
absolute, and substantial. It constitutes a total suppression
of a category of speech and is not made less so because it is
only for a period of fifteen (15) days immediately before a
national election and seven (7) days immediately before a
local election.
This sufficiently distinguishes §5.4 from R.A. No. 6646,
§ll(b), which this Court
14
found to be valid in National
15
Press
Club v. COMELEC and Osmeña v. COMELEC. For the
ban imposed by R.A. No. 6646, §11(b) 16is not only authorized
by a specific constitutional provision, but it also provided
an alternative so that, as this Court pointed out in Osmeña,
there was actually no ban but only a substitution of media

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advertisements by the COMELEC space and COMELEC

hour.
Second. Even if the governmental interest sought to be
promoted is unrelated to the suppression of speech and the
resulting restriction of free expression is only incidental,
§5.4 nonetheless fails to meet criterion [4] of the O’Brien
test, namely, that the restriction be not greater than is
necessary to further the governmental interest. As already
stated, §5.4 aims at the prevention of last-minute pressure
on voters, the creation of bandwagon effect, “junking” of
weak or “losing” candidates, and resort to the form of
election

_______________

14 Supra.
15 Supra.
16 Art. IX-C, §4.

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cheating called “dagdag-bawas.” Praiseworthy as these

aims of the regulation might be, they cannot be attained at
the sacrifice of the fundamental right of expression, when
such aim can be more narrowly pursued by punishing
unlawful acts, rather than speech because of apprehension
that such speech creates the danger of17 such evils. Thus,
under the Administrative Code of 1987, the COMELEC is
given the power:

To stop any illegal activity, or confiscate, tear down, and stop any
unlawful, libelous, misleading or false election propaganda, after
due notice and hearing.

This is surely a less restrictive means than the prohibition

contained in §5.4. Pursuant to this power of the
COMELEC, it can confiscate bogus survey results
calculated to mislead voters. Candidates can have their
own surveys conducted. No right of reply can be invoked by
others. No principle of equality is involved. It is a free
market to which each candidate brings his ideas. As for the
purpose of the law to prevent bandwagon effects, it is
doubtful whether the Government can deal with this
natural-enough tendency of some voters. Some voters want
to be identified with the “winners.” Some are susceptible to

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the herd mentality. Can these be legitimately prohibited by

suppressing the publication of survey results which are a
form of expression? It has been held that “[mere] legislative
preferences or beliefs respecting matters of public
convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as
diminishes the exercise of rights 18so vital to the
maintenance of democratic institutions.”
To summarize then, we hold that §5.4 is invalid because
(1) it imposes a prior restraint on the freedom of
expression, (2) it is a direct and total suppression of a
category of expression even though such suppression is
only for a limited period, and (3) the governmental interest
sought to be promoted can be achieved by means other
than the suppression of freedom of expression.

_____________

17 Bk. V, Tit. I, Subtit. C, Ch. 1, §3 (emphasis added).

18 Scheider v. Irvington, 308 U.S. 147, 161, 84 L. Ed. 155 (1939).

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On the other hand, the COMELEC contends that under

Art. IX-A, §7 of the Constitution, its decisions, orders, or
resolutions may be reviewed by this Court only by
certiorari. The flaws in this argument is that it assumes
that its Resolution 3636, dated March 1, 2001 is a
“decision, order, or resolution” within the meaning of Art.
IX-A, §7. Indeed, counsel for COMELEC maintains that
Resolution 3636 was “rendered” by the Commission.
However, the Resolution does not purport to adjudicate the
right of any party. It is not an exercise by the COMELEC of
its adjudicatory power to settle the claims of parties. To the
contrary, Resolution 3636 clearly states that it is
promulgated to implement the provisions of R.A. No. 9006.
Hence, there is no basis for the COMELEC’s claim that this
petition for prohibition is inappropriate. Prohibition has
been found appropriate for testing the constitutionality
19
of
various election laws, rules, and regulations.
WHEREFORE, the petition for prohibition is GRANTED
and §5.4 of R.A. No. 9006 and §24(h) of COMELEC
Resolution 3636, dated March 1, 2001, are declared
unconstitutional.
SO ORDERED.
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          Davide, Jr. (C.J.), Vitug and Gonzaga-Reyes, JJ.,

concur.
     Bellosillo, J., I join in the dissent of J. Kapunan.
     Melo, J., Please see Concurring Opinion.
     Puno, J., Please see Concurring Opinion.
     Panganiban, J., Please see Concurring Opinion.
     Kapunan, J., See dissenting opinion.
     Quisumbing, Buena and De Leon, Jr., J., On leave.
     Pardo, J., I join the dissent of J. Kapunan.
          Ynares-Santiago, J. I hereby certify that J.
Santiago joins the dissent of J. Kapunan. (Davide, C.J.)
          Sandoval-Gutierrez, J., I join in the Dissent of
Justice Kapunan.

_____________

19 See, e.g., Mutuc v. COMELEC, 36 SCRA 228 (1970); Gonzales v.

COMELEC, 27 SCRA 835 (1969).

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Social Weather Stations, Inc. vs. Commission on Elections

CONCURRING OPINION

MELO, J.:

Petitioners Social Weather Stations, Inc. and Kamahalan

Publishing Corporation, publisher of Manila Standard,
have brought this action to declare as unconstitutional
Section 5.4 of Republic Act No. 9006. Petitioners claim that
said provision, which prohibits the publication of surveys
affecting national candidates fifteen days before an
election, and surveys affecting local candidates seven days
before an election, constitutes prior restraint on the
exercise of the freedom of speech without any clear and
present danger to justify such restraint.
Respondent Commission on Elections, on the other
hand, justifies the restrictions on the ground that the same
is necessary to prevent the manipulation and corruption of
the electoral process by unscrupulous and erroneous
surveys, it being claimed that the indiscriminate
publication of surveys up to election day led to
misinformation, junking of weak and losing candidates by

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parties, and the creation of a bandwagon effect in favor of

certain candidates.
The majority opinion, written by Mr. Justice Mendoza
concludes that the disputed provision constitutes an
unconstitutional abridgment of the freedom of speech,
expression and the press.
I have to agree.
Freedom of speech has been defined as the liberty to
know, to utter, and to argue freely according to conscience,
above all liberties. It includes not only the right to express
one’s views, but also other cognate rights relevant to the
free communication of ideas, including the right to be
informed on matters of public concern. Indeed, the
principle of free political discussion is one of the
touchstones of democracy, it being a guarantee that the
people will be kept informed at all times, thereby ensuring
their intelligent discharge of the responsibilities of
sovereignty.
However, despite the primacy of free expression in the
hierarchy of fundamental civil liberties, the same is not
absolute. It can be validly regulated. Regulation must,
however, be reasonable. It
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must be shown that the interest of the public, generally, as

distinguished from that of a particular class, requires such
regulation. Second, it must appear that the means used are
reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals.
The provision in dispute plainly constitutes prior
restraint on the freedom of expression. As aptly stated by
the noted constitutionalist Fr. Bernas, “any system of prior
restraint of expression comes to this Court bearing a heavy
presumption against its constitutional validity, with the
Government carrying a heavy burden of showing
justification for the enforcement of such a restraint” (The
Constitution of the Republic of the Philippines: A
Commentary, p. 142).

Any act that restrains speech is hobbled by the presumption of

invalidity and should be greeted with furrowed brows. It is the
burden of the respondent . . . to overthrow this presumption. If it
fails to discharge this burden, its act of censorship will be struck
down (Iglesia ni Kristo vs. CA, 259 SCRA 529 [1996]).

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Respondent COMELEC has fallen short of the required

effort to overthrow this presumption, it having failed to
show that the means used by Section 5.4 of Republic Act
No. 9006 are reasonably necessary for the accomplishment
of the purpose, and that the same are not unduly
oppressive upon individuals.
It bears emphasizing that Section 5.4 limits itself to
prohibiting the publication of surveys affecting national
candidates fifteen days before an election, and surveys
affecting local candidates seven days before an election. It
does not restrict reporting by trimedia of the merits or
demerits of national and local candidates and their chances
at the polls. Neither does it prohibit commentaries by radio
broadcasters and TV anchors, the expression of opinions by
columnists and editors of newspapers. In fact, the provision
in dispute does not prohibit paid hacks from trumpeting
the qualifications of their candidates. In fine, while survey
organizations who employ scientific methods and engage
personnel trained in the statistical sciences to determine
socio-political trends, are barred from publishing their
results within the specified periods, any two-bit scribbler
masquerading as a legitimate journalist can
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write about the purported strong showing of his candidate

without any prohibition or restriction. The means used to
regulate free expression is thus, not reasonably necessary
for the accomplishment of the purpose. Worse, it is unduly
oppressive upon survey organizations, which have been
singled out for suppression, on the mere apprehension that
their survey results will lead to misinformation, “junking,”
or contrived bandwagon effect.
Admittedly, not all organizations which generate
surveys are legitimate. Some publish surveys are, at best,
disingenuous. Yet, the possibility of abuse does not
authorize government to restrict the activities of survey
organizations at the expense of the freedom of expression.
The very foundation of democracy is, as stated in Abrams
vs. U.S. (250 US 610), grounded on the belief

[T]hat the ultimate good desired is better reached by a free trade

in ideas—that the best test of truth is the power of the thought to
get itself accepted in the competition of the market; and that
truth is the only ground upon which their wishes can be safely

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carried out. That, at any rate, is the theory of our Constitution. It

is an experiment, as all life is an experiment. Every year, if not
every day, we have to wager our salvation upon some prophecy
based upon imperfect knowledge. While that experiment is part of
our system I think that we should be eternally vigilant against
attempts to check the expression of opinions that we loathe and
believe to be fraught with death, unless they so imminently
threaten immediate interference with the lawful and pressing
purposes of the law that an immediate check is required to save
the country.

To reiterate, the prohibition against surveys within the

specified period is a prior and unreasonable restraint upon
the freedom of expression which is not reasonably
necessary to achieve the purpose of clean, honest, orderly
and peaceful elections.
For the foregoing reasons, I vote to grant the petition for
prohibition and to declare Section 5.4 of R.A. No. 9006
unconstitutional.

CONCURRING OPINION

PUNO, J.:

Petitioners seek to declare as unconstitutional Section 5.4

of R.A. No. 9006, otherwise known as the “Fair Election
Act,” which states:
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Sec. 5.4. Surveys affecting national candidates shall not be

published fifteen (15) days before an election and surveys
affecting local candidates
1
shall not be published seven (7) days
before an election.”

“Surveys” refer to the “measurement of opinions and

perceptions of the voters as regards a candidate’s
popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters’
preference for candidates or publicly2 discussed issues
during the campaign period x x x.” Violation of the
prohibition is punishable as an election offense under
section 264 of 3B.P. 881, otherwise known as the Omnibus
Election Code.

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Petitioners assail the law as constitutionally infirmed on

the ground that it is an 4
abridgment of their freedom of
speech and of the press. I concur with the majority opinion
penned by Mr. Justice Mendoza which is protective of
speech and file this separate opinion by way of supplement.
It is now deeply embedded in our jurisprudence that
freedom of speech and of the press
5
enjoys a preferred status
in our hierarchy of rights. The rationale is that the
preservation of other rights depend on how well we protect
our freedom of speech and of the press. In view of the
preferred status of freedom of speech and of the press,
several tests have been enunciated to protect it. We have
the dangerous tendency test which now commands little
following. We have the clear and present danger test, the
most libertarian test, formulated
6
by Justice Holmes in
Schenk v. United States, viz.: “The question in every case is
whether the words used are used in such circumstances
and are of such a nature as to create a clear and present
danger that they will bring about the substantive evil that
the State 7has a right to prevent.” In Gonzales v.
COMELEC,

______________

1 See also section 24 (H) of COMELEC Resolution No. 3636

implementing R.A. No. 9006.
2 Ibid., section 1 (9) (e).
3 See section 13 of R.A. No. 9006.
4 See section 4 of Article III of the 1987 Constitution.
5 Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills, 51 SCRA 189 (1973).
6 249 US 47 (1919).
7 27 SCRA 835 (1969).

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Mr. Chief Justice Fernando explained that “the term clear

seems to point to a causal connection with the danger of the
substantive evil arising from the utterance questioned.
Present refers to the time element. It used to be identified
with imminent and immediate danger. The danger must
not only be probable but very likely inevitable.” We have8
the various balancing tests typified by the O’brien test, to
wit:

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“[A] government regulation is sufficiently justified [1] if it is

within the constitutional power of the Government; [2] if it
furthers 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 alleged First
Amendment freedoms [of speech, expression and press] is no
greater than is essential to the furtherance of that inter-est.”

All of these tests have their own criticisms but I need not
express any preference for any of these tests to resolve the
case at bar, for regardless of the test used, the assailed
provision is void on its face and patently unconstitutional.
The provision in question is unconstitutional because it
constitutes a clear prior restraint on petitioners’ freedom of
speech and of the press. I like to stress on the prohibition
against prior restraint for two reasons: (1) a historical
study of human rights will show that it is prior restraint
that gave rise to freedom of speech and of the press; and (2)
there is a growing tendency, as noted by legal observers, for
governments to manipulate the free market of ideas in the
guise of merely regulating the time, manner and place of
exercising freedom of speech and of the press. The tendency
appears in various masks. One of them is thru prior
restraint or thru subsequent punishment of acts regulating
the exercise of freedom of speech and of the press.
The invention of printing in the fifteenth century
revolutionized the communication of ideas. Soon it dawned
on the temporal and spiritual authorities that printing
should be controlled and thus

_____________

8 See also US v. O’brien, 391 US 367, 20 L. Ed. 672 (1968).

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prior 9restraint on freedom of speech and of the press was

born. In 1501, Pope Alexander VI issued a Bull banning
unlicensed printing. In England, printing became a
monopoly and was strictly dispensed and controlled by the
Crown. It was only in 1695 that the House 10
of Commons
declined to reenact its licensing statute. In the 18th
century, however, the right of the press against prior
licensing 11gained the important status of a natural right in
England. In 1791, The First Amendment to the US
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Constitution, prohibiting the abridgment of freedom of

speech and of the press, was ratified by the States.
Undoubtedly, the First Amendment is a bar against any
prior restraint, especially the classic form of licensing by
government authorities. Thus, in the United States, the
prohibition was elevated to a constitutional principle.
12
In
1931, in the leading case of Near v. Minnessota, the US
Supreme Court, speaking thru Mr. Chief Justice Hughes
expressly ruled that “x x x liberty of the press, historically
considered and taken up by the Federal Constitution, has
meant, principally although not exclusively, immunity from
previous restraints or censorship” Our Constitutions of
1935, 1973, and 1987 guaranteed freedom of speech and of
the press and undeniably, we adopted the US model and its
rationale. I therefore emphasize that prior restraints on
freedom of speech and of the press should be given the
strictest of scrutiny in light of their inherent and invasive
impact.
In the case at bar, the law bans publication of surveys
affecting national candidates 15 days before an election and
surveys affecting local candidates 7 days before an election.
Violation of the ban carries a criminal sanction. This is
pure and simple prior restraint on the communication and
free flow of ideas which should be made available to voters
before they exercise their right of suffrage, the core of their
political sovereignty. Prior restraint can be justified only on
the narrowest of ground like national security. The prior

_______________

9 Press Control and Copyright in the 16th and 17th Centuries 17th
Centuries, 17 Yale L.J. 841 (1920).
10 Licensing Act of 1662, see Holdsworth, A History of English Law 360-
79 (2nd Ed., 1937).
11 Emerson, The Doctrine of Prior Restraint in Law and Contemporary
Problems, vol. 20, pp. 651 (1955) citing Blackstone’s Commentaries.
12 283 US 697 (1931).

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restraint in the case at bar is not based on compelling

reasons in the category of national security and hence is
intolerable for government should not be encouraged to take
any step to control the subject matter of speech, otherwise it
will have the dangerous power to manipulate the form and
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shape of thoughts that will compete in the market of ideas.

In the free market of ideas, government is bound to follow
the laissez faire policy to the maximum and not the
paternalistic policy of government knows best.
The provision in question is also void for its overbreadth.
The overbreadth doctrine prohibits government from
achieving its purpose by “means that sweep unnecessarily
broadly, reaching constitutionally
13
protected as well as
unprotected activity.” Stated otherwise, “the essence of
overbreadth is that government has gone too far: its
legitimate interest can be satisfied without 14
reaching so
broadly into the area of protected freedom.”
In the case at bar, the prohibited surveys are all
inclusive. They include “measurement of opinions and
perceptions of the voters as regards a candidate’s
popularity, qualification, platforms or a matter of public
discussion in relation to the election including voter’s
preference for candidates or publicly discussed issues
during the campaign period x x x.” Clearly, the provision
bans not only popularity surveys which show the winning
and losing candidates but all “measurement of opinions
and perceptions of the voters as regards a candidate’s x x x
qualifications, platforms or a matter of public discussion in
relation to the election x x x.” The inhibitory effect of this
ban on free speech and the free flow of information which
voters need to guide their choice of candidates is too much.
Indeed, the ban does not distinguish between biased and
unbiased surveys or between surveys conducted with
scientific accuracy and surveys done sloppily or between
surveys that help enlighten voters in exercising their right
of suffrage and surveys that mislead. Petitioner Social
Weather Stations, Inc. is one of our more reliable private
non-stock, non-profit social research institutions with a no-

____________

13 J. Norwak, R. Rotunda & J. Young, Handbook on Constitutional Law

868 (2nd Ed., 1983).
14 Redish, The Warren Court, the Burger Court and the First
Amendment Overbreadth Doctrine, 78 Nw. U.L. Rev. 1035 (1983-4).

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nonsense record. Yet, the provision in question, because of

its overbreadth, will bar petitioner from making its useful
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pre-election surveys. Certainly, there are less drastic means

which government can utilize to achieve its objective of
protecting voters from false, misleading and unfair surveys.
I vote to grant the petition.

CONCURRING OPINION

PANGANIBAN, J.:

I concur in the well-written ponencia 1of Mr. Justice Vicente

V. Mendoza holding that Section 5.4 of Republic Act (RA)
No. 9006 is unconstitutional. The provision is a patent
infringement of the fundamental freedoms of expression
and of the press.
In the recent case ABS-CBN 2
Broadcasting Corporation
v. Commission on Elections, the Court en banc junked
Comelec Resolution No. 98-1419 dated April 21, 1998,
which restrained the conduct of exit polls, a species of
electoral surveys. We held that “the holding of exit polls
and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and
of the press. They cannot be banned “totally in the guise of
promoting clean, honest, orderly and credible elections.
Quite the contrary, exit polls—properly conducted and
publicized—can be vital tools in eliminating the evils of
election-fixing and fraud.” As mankind pushes the frontiers
of science and technology in mass communications,
3
so must
the scope of free expression expand to cover the conduct
and the publication of surveys.
In said case, we visited the long-standing fundamental
principle underlying democracies that the freedom of
expression is a preferred right, standing on a higher level
than other substantive liberties. Indeed, as this nation has
recently witnessed once again,

_____________

1 ”Surveys affecting national candidates shall not be published fifteen

(15) days before an election and surveys affecting local candidates shall
not be published seven (7) days before an election.”
2 323 SCRA 811, January 28, 2000.
3 Panganiban, Transparency, Unanimity & Diversity, 2000 ed p 376.

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lessons of history, both political and legal, illustrate that

freedom of thought and speech is an indispensable 4
condition of nearly every other form of freedom. Thus, our
Constitution explicitly mandates that no law shall be 5
passed abridging the freedoms of speech and of the press.”
While the exercise of these basic rights could not be
absolute—liberty is never absolute—but may be subject to
regulation by the state, any limitation should be justified
by a clear and present danger of such substantive
6
character
that the state has a right to prevent. In other words, the
evil sought to be avoided must be so substantive as to
justify a clamp
7
over one’s mouth or a restraint of a writing
instrument.
There is, however, no compelling or justifiable reason for
the prohibition made by Congress under the assailed law.
The Comelec also utterly fails to convince me that a
substantive danger, which the state has a right to prevent,
lies lurking and threatening to explode if ignited by the
conduct and the dissemination of the prohibited surveys.
No lover of freedom, no guardian of the Constitution and
advocate of democracy can agree to this unreasonable
restraint. 8
Indeed, Daily Herald Co. v. Munro held that the
general interest of the state in insulating voters from
outside influences is insufficient to justify speech
regulation.
WHEREFORE, I vote to GRANT the Petition and to
DECLARE Section 5.4 of RA 9006 UNCONSTITUTIONAL.

_____________

4 Supra, citing Salonga v. Cruz Paño, 134 SCRA 438, 458-459,

February 18, 1985, See also Gonzales v. Comelec, 27 SCRA 835, 849, 856-
857, April 18, 1969; Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co. Inc., 51 SCRA 191, June 5, 1973; National
Press Club v. Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong
v. Comelec, 207 SCRA 712, 715, March 31, 1992.
5 Sec. 4, Art. III, Constitution.
6 See Primicias v. Fugoso, 80 Phil. 71 (1948;; American Bible Society v.
City of Manila; 101 Phil. 386 (1957); Iglesia ni Cristo v. MTRCB, 259
SCRA 529, July 26, 1996.
7 Adiong v. Comelec, supra.
8 838 F. 2d. 380 (9th Cir. 1988), cited in ABS-CBN v. Comelec, supra.

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DISSENTING OPINION

KAPUNAN, J.:

Two seemingly conflicting rights or interests, both integral

to our democratic system, are involved in this case.
On the one hand are the freedoms of speech and of the
press, which, as often stated, are accorded1
a preferred
status in our constitutional hierarchy, essential as they
are to the preservation
2
and vitality of our civil and political
institutions. The primacy, the high estate of these
freedoms3
is a fundamental postulate of our constitutional
system.
On the other hand, the Constitution requires the State
to “guarantee
4
equal access to opportunities for public
service,” and mandates Congress to “provide a 5
system for
securing the secrecy and sanctity of the ballot.” The State’s
interest in holding 6
“free, orderly, honest, peaceful and
credible elections” cannot be denied.

_____________

1 Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712

(1992); Mutuc vs. Commission on Elections, 36 SCRA 228 (1970).
2 Philippine Blooming Mills Employees Organization vs. Philippine
Blooming Mills, 51 SCRA 189 (1973).
3 Gonzales vs. Commission On Elections, 27 SCRA 835 (1969).
4 Article II; Section 26.
5 Article V, Section 2.
6 Article IX-C, Section 4 reads:

Sec. 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.

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Social Weather Stations, Inc. vs. Commission on Elections

At the heart 7of the controversy is Section 5.4 of Republic8

Act No. 9006, otherwise known as the “Fair Election Act,”
which states that:

Surveys affecting national candidates shall not be published

fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an
election.

“Surveys,” as used above, pertain to “election surveys,”

which in Section 5 thereof—

x x x refer to the measurement of opinions and perceptions of the

voters as regards a candidate’s popularity, qualifications,
platforms or a matter of public discussion in relation to the
election, including voters’ preference for candidates or publicly
discussed issues during the campaign period, x x x

The Fair Election Act was signed into law by the President
on February 12, 2001. Pursuant to its authority under
Section 13 thereof, the Commission on Elections
(COMELEC) on March 1, 2001 promulgated through
Resolution No. 3636 the Implementing Rules and
Regulations of the Fair Election Act. Section 24 of the
implementing rules is a verbatim reproduction of Section
5.4.
Petitioners contend that the subject provisions violate
the freedoms of speech and of the press enshrined in
Section 4, Article III of the Constitution thus:

No law shall be passed abridging the freedom of speech, of

expression, or of the press x x x.

As publisher of a newspaper, Kamahalan maintains that

its right to freedom of the press is unduly infringed by
Section 5.4. Insofar as publication (of surveys) is a
component of the freedom of speech, the freedom of SWS is
also purportedly severely restricted.
Although among our most cherished rights, the
freedoms of speech and of the press are not absolute or
unlimited. In certain

____________

7 An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and

Credible Elections Through Fair Election Practices.
8 R.A. No. 9006, Section 1.

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instances, this Court has allowed the regulation of the

exercise of these freedoms vis-a-vis election-related
9
laws. In
Osmeña vs. Commission on Elections10 and National Press
Club vs. Commission on Elections, the law prohibiting
newspapers, radio broadcasting and television station from
selling or giving free of charge print space or air time for
campaign or other political purposes 11
was declared valid. In
Badoy vs. Commission of Elections, the prohibition on the
publication of paid political advertisements outside the
COMELEC space was likewise 12
upheld. In Gonzales vs.
Commission on Elections, where the prohibition on the
early nomination of candidates and the limitation on the
period of election campaign or partisan political activity
under Republic Act No. 4880 was assailed for being
violative of the freedoms of speech, of the free press, of
assembly and of association, the Court declared the law not
unconstitutional.
Courts have employed certain tests to determine the
validity of restrictions on the rights to free speech and free
press. The “dangerous tendency” rule provided that the
State has the power to proscribe and punish speech which
“creates a dangerous
13
tendency which the State has a right
to prevent.” This formulation, however, had long been
abandoned in the United States as well as in this
jurisdiction.
The “clear and present danger” rule postulates that “the
question in every case is whether the words are used in
such circumstances and are of such nature as to create a
clear and present danger that they will bring about the 14
substantive evils that Congress has the right to prevent.”
This rule15 has been applied in our jurisdiction in a number
of cases.

______________

9 288 SCRA 447 (1998).

10 207 SCRA 1 (1992).
11 35 SCRA 285 (1970).
12 Supra.
13 Gitlow v. New York, 268 U.S. 652, 69 L. Ed. 1138.
14 Schenck v. United States, 249 U.S. 47, 63 L. Ed. 470, 473-474.

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15 ABS-CBN Broadcasting Corp. vs. Commission on Elections, 323

SCRA 811 (2000,); Bio Umpar Adiong vs. Commission on Elections, supra;
Imbong vs. Ferrer, 35 SCRA 28 (1970).

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Nevertheless, Associate Justice Fred Ruiz Castro, later

Chief Justice, in his separate
16
opinion in Gonzales vs.
Commission on Elections, expressed the view that in
determining the constitutionality of Republic Act No. 4880
assailed therein, another approach the so-called
“balancing-of-interests” test, was more appropriate. He
observed:

However useful the “clear and present danger” formulation was in

the appraisal of a specific type of situation, there is fairly
extensive recognition that it is not a rule of universal applicability
and validity, not an automatic mechanism that relieves a court of
the need for careful scrutiny of the features of a given
17
situation
and evaluation of the competing interests involved.

Justice Castro
18
cited American Communications Association
v. Douds, where the “balancing-of-interests” test was
applied. In said case, the United States Supreme Court
stated that “in suggesting that the substantive evil must be
serious and substantial, it was never the intention of [the
U.S. Supreme Court] to lay down an absolutist19
test
measured in terms of danger to the Nation.” Chief Justice
Vinzons, expounded:

When a particular conduct is regulated in the interest of public

order, and the regulation results in an indirect, conditional,
partial abridgment of speech, the duty of the courts is to
determine which of the two conflicting interests demands the
greater protection under the particular circumstances presented,
x x x In essence, the problem is one of weighing the probable
effects of the statute upon the free exercise of the right of speech
and assembly against the congressional determination x x x We
must, therefore, undertake the delicate and difficult task x x x to
weigh the circumstances and to appraise the substantiality of the
reasons advanced in 20support of the regulation of the free
enjoyment of the rights.

The test is further explained thus:

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____________

16 Supra.
17 Id., at 898.
18 339 U.S. 383, 94 L. Ed. 925.
19 Id., at 944.
20 Id., at 943.

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The theory of balance of interests represents a wholly pragmatic

approach to the problem of First Amendment freedom, indeed, to
the whole problem of constitutional interpretation. It rests on the
theory that it is the Court’s function in the case before it when it
finds public interests served by legislation on the one hand, and
First Amendment freedoms affected by it on the other, to balance
the one against the other and to arrive at a judgment where the
greater weight shall be placed. If on balance it appears that public
interest served by restrictive legislation is of such character that
it outweighs the abridgment of freedom, then the court will find
the legislation valid. In short, the balance-of-interests theory rests
on the basis that constitutional freedoms are not absolute, not
even those stated in the First Amendment, and that they may be
abridged to some 21
extent to serve appropriate and important
public interests.
22
In Zaldivar vs. Sandiganbayan, this Court reiterated that
the clear-and-present danger test was not a cure-all to
freedom of speech controversies:

The “clear and present danger doctrine,” which test is invoked by

respondent’s counsel is not a magic incantation which dissolves
all problems and dispenses with analysis and judgment in the
testing of the legitimacy of claims to free speech, and which
compels a court to exonerate a defendant the moment the doctrine
is invoked, absent proof of impending apocalypse. The “clear and
present danger” doctrine has been an accepted method for
marking out the appropriate limits of freedom of speech and of
assembly in certain contexts. It is not, however,
23
the only test
which has been recognized and applied by courts.

Zaldivar 24cited the case of Lagunzad vs. Soto Vda. de

Gonzales, where the Court also referred to the
shortcomings of the clear-and-present doctrine noted by
Justice Castro in Gonzales. Justice Melencio-Herrera
further wrote:
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_____________

21 KAUPER, CIVIL LIBERTIES AND THE CONSTITUTION, p. 113

cited in Separate Opinion, Castro, J., in Gonzales vs. Commission on
Elections, supra.
22 170 SCRA 1 (1989).
23 Id., at 8.
24 92 SCRA 476 (1979).

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x x x Another criterion for permissible limitation on freedom of

speech and of the press, which includes such vehicles of the mass
media as radio, television and the movies, is the “balancing-of-
interests test.” The principle “requires a court to take conscious
and detailed consideration of the interplay25
of interests observable
in a given situation or type of situation.” [Citations omitted.]

It is my considered opinion that given the apparent conflict

between petitioners’ rights of speech and press—rights
enshrined in the Constitution, and the inherent power of
Congress to legislate on matters of public interest and
welfare, and in pursuance of the constitutional policy of
ensuring of “free, orderly, honest, peaceful and credible
elections,” it is ultimately this Court’s function and duty to
undertake the delicate and difficult task of weighing and
balancing the circumstances to determine whether public
interest is served by the regulation of the free enjoyment of
the rights.
I believe that Congress did not exceed constitutional
limitations in enacting Section 5.4.
Indisputably, the State has a26 legitimate interest in
fostering an informed electorate. It has a compelling
interest in27
protecting voters from confusion and undue
influence and, generally,
28
in preserving the integrity of its
election process. In furtherance of these State interests,
Congress is empowered to enact laws relative to the
conduct of elections. It may not only regulate the time,
manner and place of the holding of the elections but may
likewise regulate the 29election campaigns and other
activities relative thereto.
In enacting the Fair Election Act, Congress declared
that the State “shall, during the election period, supervise
or regulate the enjoyment or utilization of all franchises or

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permits for the operation of media of communication or

information to guarantee or

____________

25 Id., at 488.
26 Eu v. San Francisco Democratic Com., 489 US 214, 103 L. Ed. 2d.
271, 109 S. Ct. 1013.
27 Burson v. Freeman, 119 L. Ed. 2d. 5.
28 Id.; ABS-CBN Broadcasting Corp vs. Commission on Elections, 323
SCRA 811 (2000).
29 Gonzales vs. Commission on Elections, 27 SCRA 835 (1969).

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ensure equal opportunity for public service, including

access to media time and space, and the equitable right to
reply for public information campaigns and fora among
candidates and assure
30
free, orderly, honest, peaceful and
credible elections.” Further, said law aims to “ensure that
bona fide candidates for any public office shall
31
be free from
any form of harassment and discrimination.”
Towards these ends, Section 5.4 was incorporated
specifically to prevent the evils brought about by election
surveys published immediately before an election. The
deliberations on the Senate Floor are revealing:

Adverting to the bill of Senator Tatad, Senator Defensor Santiago

said that the country has no law regulating the conduct of surveys
and the activities of survey stations and private groups
particularly those relating to political opinions. She said that
some Western countries prohibit political opinion polls or surveys
for certain periods before elections to avoid last minute pressure
on voters as politicians and political parties often cause the
conduct and dissemination of surveys to advance their political
interests.
She informed the body that the Internet reported on a
worldwide survey on the publication of poll results prior to
elections where 30 of the 78 countries surveyed apply legal
restrictions on the publication of public opinion survey results
comprising an embargo prior to general elections, which ranges
from 24 hours to six weeks before an election. She said that
among the reasons for the government restrictions cited Ly the
Internet survey were protecting the integrity of the democratic
process, the rights of privacy and national security considerations.
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According to the report, she said, some countries in recent

years have prolonged their embargo periods—for example, Italy,
from seven to 28 days; Canada, from no ban to three days; and
Chile, from one to seven days—while other countries have
shortened or withdrawn their embargoes—for example, Croatia,
from three days to 24 hours; Colombia, from 10 to seven days; and
Argentina, from two weeks to no ban.
In this connection, Senator Defensor Santiago asked whether
Senator Roco would consider an amendment providing for the
criteria for the publication of opinion surveys as she expressed
fear that an opinion survey firm might work diligently for some
time in order to establish a repu-

____________

30 Republic Act No. 9006, Section 2.

31 Ibid.

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tation for credibility and then, at the ultimate hour, sell its
services to the highest bidder.
Senator Roco recalled that earlier in the session, he had
discussed with Senator Defensor Santiago and some senators the
idea of not just lifting the ban on election propaganda but also of
giving fair protection to candidates, especially from the unfairness
of reporting certain survey results during the campaign period. He
added that the committee had been studying the rule in the
United States where poll surveyors mention who authorized and
paid for the survey, and what method was used, and furnish raw
data to anybody who feels aggrieved by the poll results. He agreed
that there must be a period when surveys should not be published
because they influence elections through self-fulfilling predictions.
However, Senator Roco expressed concern that a full-blown
debate on another issue might impede the approval of the bill,
although he welcomed an amendment which would create a
balance of fair reporting and fair opportunity for candidates.
Senator Defensor Santiago warned that the fate of the
country’s leadership should not be left in the hands of survey
firms which are not accountable to the people and possess no
amount of sovereign power. Additionally, she expressed
resentment that a public official like herself should be treated like
a can of sardines because poll surveys have reduced political life
to a mere matter of appearances.

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Senator Roco commented that all professions which deal with

communications are aware that the way a question is put can
influence the answer; the more simplistic question can give rise to
a host of interpretations. On the other hand, he said, it is a
matter of public interest if there is an attempt to measure validity
or acceptability of issues; still, full disclosure and transparency
should apply to poll surveyors
32
and to all who try to promote and
protect public welfare.

The original proposal was a 30-day restriction on the

publication of surveys. Senator 33
Flavier suggested the
while Senator Osmeña was amenable to a
deletion of the restriction,
Senators Roco and Defensor-Santiago vigorously opposed the deletion. Senator Roco
shorter period of 3 days.34
said that:

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x x x the committee cannot accept the deletion of the prohibition

as he observed that in the Philippines, the bandwagon effect is
part of campaign planning. He recalled that in 1969, the influence
of propaganda was so evident: every single pole or space was
plastered with “Marcos-Lopez” posters and for the duration of the
one-year campaign period, the newspapers kept on repeating that
Marcos-Lopez was unbeatable that after a while, the people
believed it. He explained that it is the publication and not the
conduct of surveys that would be prohibited in this Act. However,
he pointed out that the surveys would be useful to senatorial
candidates, especially those who wish to land in the top six slots,
because their names would be repeatedly mentioned on TV so
that the voters might be influenced to vote for them. He said that
candidates particularly those who do not have access to TV and
radio have no money to influence publications should be given
equal break during the 30-day period.
35
He appealed the Members
to support the committee’s position.

Senator Defensor-Santiago concurred with Senator Roco:

x x x She pointed out that at the start of the debate, the Body was
of the consensus that the operating principles of the bill should be
equality and impartiality. She opined that these principles would
be violated if the Body would delete the prohibition. Moreover, she
argued that a political neophyte who deserves exposure because of
his honesty, competence and efficiency would probably not be in
the winning circle until the crucial decisive few days before the
election. She said that the publication of a survey at any point
earlier than that would be detrimental to the candidate and to

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national interest. She expressed support for Senator Roco’s appeal

to maintain the present provision. She said that the freedom of
expression in a constitutional dimension was not relevant to the
discussion because a candidate who can afford it can ask any
agency to conduct a survey; however, out of compelling national
interest in the Philippine culture context, the State prohibits the
publication of surveys within a certain period so as to avoid
manipulating the minds of the electorate
36
and to preserve the
principle of equality and impartiality.

Eventually, the position

37
of Senators Roco and Defensor-
Santiago prevailed although, after the Bicameral
Conference, the original

____________

35 Id., at 267.
36 Id., at 267-268.
37 Id., at 268.

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30-day limitation, was reduced to 15 days with respect to

surveys affecting national candidates.
Evidently, Congress found that the publication of
surveys within the prohibited period inordinately works
against candidates who are shown to be “losing.” The
assailed provision thus seeks to avert the “bandwagon
effect” supposedly caused by the publication of election
surveys. The bandwagon effect results when a voter opts
for a candidate or candidates whom the surveys reveal as
the leading contender or contenders, the voter believing,
rightly or wrongly, that the candidate or candidates whom
the voter actually prefers would lose anyway, as indicated
in the surveys. The bandwagon effect produces more votes
for the “winning” candidate ordained as such by the
surveys and less votes for the “losing” candidate. Surveys
add to the prospects of the “winner” and lessen that of the
“loser,” who is thereby deprived of an equal opportunity to
get elected. Hence, the surveys take the form of a self-
fulfilling prophecy.
Ideally, a citizen ought to vote for a candidate based on
the latter’s personal qualifications and platform for
governance. This is the ideal that the law aims to achieve;
surveys published during the prescribed period before the
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elections have been deemed by Congress to frustrate this

objective.
The prospect of misinformation magnifies the dangers of
the bandwagon effect. There is nothing to prevent
unscrupulous interests from procuring the services of an
enterprise masquerading as a “credible” research
institution to conduct “surveys” with predetermined
results, and cause their publication. Worse, there is
nothing to prevent the simple publication of entirely false
results. The evil of the bandwagon effect caused by election
surveys, whether absolutely accurate or utterly untrue, is
further enhanced by the pervasiveness of media. Advances
in technology have widened the electorate’s access to both
information and, regrettably, to misinformation.
It may be argued that propaganda portraying a
candidate as possessing certain virtues or espousing
certain causes, regardless of the truth of these claims, also
influence the voter in making his or her choice. The
distinction lies in that a survey lulls the voter into thinking
that the election is over but the counting, and that
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his vote for a losing candidate would not matter in the end.
While election propaganda expressly urge the voter to
choose a candidate because of his qualifications and causes,
the surveys, clothed with the mantle of statistics and
couched in esoteric terminology, implicitly urge the voter to
choose a candidate because of his popularity. This
persuasive effect is unique to surveys; it is a feature absent
in election propaganda.
This congressional concern regarding the bandwagon
effect is supported by a study cited by the Solicitor General:

It is noteworthy that it is easier to translate voting intentions into

potential seats in a two-party system than in a multi-party
arrangement. The accuracy of election polls is also determined by
actual voter turnout; pre-election surveys can sometimes be out of
date by the time they are reported, x x x. Last, polls can present
an opportunity for deliberate misrepresentation or connivance by
those who publish survey results; many examples of this practice
by political parties have been cited. Advocacy groups seeking to
influence the public agenda can also commission polls for public
release and may draft questions to support their case or point of

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view. In short, public opinion surveys are blunt instruments of

prediction and are susceptible to many forms of error.
Opponents of political polling point to notable failures like the
predicted victories of Landon over Roosevelt in 1936, of Dewey
over Truman in 1948, and of Wilson over Heath in Britain in
1970. Most pollsters considered the outcome of the 1980
presidential election in the United States too close to call, yet
Ronald Reagan won by a landslide. The 1992 surprise victory of
the Conservatives over Labour in Britain is another similar
example, x x x
THE IMPACT OF POLLING ON THE ELECTORAL
PROCESS

A. Direct Effects

Because polls are generally perceived to be accurate and

scientific, the debate on polling centres largely whether it
undermines the democratic process by influencing electoral
behaviour and election results. Some political strategists and
observers argue that the publication of polls gives an unfair
advantage to parties or candidates whose fortunes are seen to be
improving. The so-called “bandwagon” effect assumes that
knowledge of a popular “tide” will likely change voting intentions
in favour of the frontrunner, that many electors feel more
comfortable sup-

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porting a popular choice or that people accept the perceived

collective wisdom of others as being enough reason for supporting
a candidate.
The bandwagon phenomenon, however, is dismissed by those
who argue that voters do not pay much attention to poll results in
the first place, that not everyone believes them, and that it is not
important for everyone to be on the winning side. Furthermore,
while some voters may want to be on the victorious side, at least a
few will rally to support the expected loser out of sympathy—the
so-called “underdog” effect—which would cancel out or annul any
shifts in preference.
Although academics in the United States have long been
divided over the impact of published polls on the outcome of
elections, recent research supports the proposition that their
publication can influence a close election, with the most impact
occurring late in a campaign. Recent studies in Canada also
support the notion that polls published during political campaigns

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can create the “politics of expectations,” a situation that

stimulates the bandwagon effect and promotes “strategic voting,”
in which voting is influenced by the chances of winning. For
example, citizens may cast ballots for their second-choice
candidate who appears to have a better chance than the first
choice of defeating a disliked candidate or party. Such behaviour
is said to be increasing in Canada as close three-party races
become more common. It is therefore argued that voters making
such strategic choices have every right to38 expect that the results
of opinion surveys are scientifically valid.

The same study also pointed out other “indirect effects” of

surveys published during the election period, that it
detracts from the “real” issues of the election and affects a
candidate’s momentum:

B. Indirect Effects

The indirect effects of polls during elections may be as important

as their possible direct influence. Because of the multiplicity of
published surveys and the attention they receive from the media,
some charge that polls detract from discussion of the “real” issues.
Indeed, many describe news coverage of Canadian elections as
being analogous to that of a sporting event or “horse-race,” with
serious analysis of the issues or investigation into areas of voter
concern being largely ignored. The media’s

___________

38 Comment of the Solicitor General, pp. 8-11, citing Public Polling in Canada
by Claude Emery, at http://www.parl.gc.ca/information/library/PRBpubs.

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emphasis on who is winning and who is losing (as well as on the

campaign “style” of leaders and their parties) may also result in
so-called “leader-fixation.’’ As one scholar explains:
Polls conducted throughout the campaign . . . focus on
leadership in an attempt to predict the outcome of the election
and to explain it in terms of leader appeal. The polls are
presented as measures to gauge how the leaders’ campaigns are
faring. In this sense the media coverage misrepresents the
political system, narrows the focus of 39public debate, and
denigrates political leaders and institutions.

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The deliberations during the Bicameral Conference also

intimate another purpose in passing the challenged
provisions, that is, to prevent the nefarious, election
scheme known as “dagdagbawas.” Dagdag-bawas, a
phenomenon peculiar to Philippine elections, takes place
when votes cast in favor of one candidate are deducted then
credited to another. Senator Roco also observed that last-
minute surveys generate “junking” of candidates at the tail
end of the surveys by their very own party-mates or
supporters.

CHAIRMAN ROCO. I do not want to say it that way. I only said,

that if you will target people to campaign against, you will target
people who are outside 1 to 6 because it is a waste of time to try to
drag No. 6 down to 13. Legitimate campaign.
Mapababa mo man ang No. 1, umabot ng no. 6, he or she still
occupies one post. Hindi nawawala. Ang tatargetin mo, 9, 10, 11,
parang junking doon sa sample ballots mawawala yong mga
mabababa because yon ang puedeng mawala. Yong 1 to 6 or 1 to
8, ang hirap-hirap nang tanggalin.
So, in your sample ballots you don’t care. Sa sample ballots,
kung sa surveys 10, 11, 12, eh, lalo kung 12, naku, candidate ‘yon
for disappearance. Yon ang mga napapalitan ang mga favorite.
Hindi ba? Sa Bicol tanggal yon. Ang lalabas doon Bicolano lang.
Di ba? Kung mahina-hina ang No. 12, tanggal na yon. Mahina-
hina ang No. 11, tanggal na yon sa mga regions. Every region has
its own favorite. Papasok na sa sample ballots. Walang dayaan
yon. But you will not try to eliminate somebody who is impossible
to eliminate. What is your interest? Loren is No. 1, so,

_____________

39 Id.

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she becomes No. 3. Who cares! 40

Maybe, she’s a bit unhappy. But
she is still senator, you see!

Senator Legarda-Leviste also expressed that “it is the fear

of some of the other senators that because they are
perceived to be the last three or four slot occupants
41
and
they could be the target of a ‘dagdag-bawas.’ ”
That the law, in Sections 5.2 and 5.3, prescribes certain
requirements in the publication of surveys and allows the
inspection thereof do not suffice to thwart the dangers
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sought to be avoided by Section 5.4. Election surveys are

more in demand as the elections draw closer. The reason is
obvious. The public rating of the candidates shifts from
time to time over the months. But a survey taken very close
to the election might be taken as indicative of a firm and
final tally of the results, giving more motive to fly-by-night
pollsters or survey groups controlled by vested interests to
manipulate the survey results. It is conceded that Sections
5.2 and 5.3 affords interested parties an opportunity to
examine and analyze the published surveys and to refute
or confirm their accuracy. However, these regulations lose
their efficacy during the period contemplated by Section 5.4
because said interested parties would no longer have
adequate time to test the veracity of said surveys,
especially42 if they are published, say, a day before the
elections.

______________

40 Transcript of Committee Meetings, Bicameral Conference Committee

on the Disagreeing Provisions of Senate Bill No. 1742 and House Bill No.
9000, November 23, 2000, p. 32.
41 Id., at 36.
42 Alvin Capino, in his column “Counterpoint” (Today, April 21, 2001)
had this to say:

One more reason why survey results for senators should be taken with a grain of
salt is the explanation of Felipe Miranda of Pulse Asia about the adjustment
pollsters make because of the socalled command votes.
Command votes are the block votes of religious groups like Iglesia ni Cristo and
El Shaddai. Members of these groups vote according to the instructions of their
leaders.
According to those who attended a recent briefing of Miranda, the head of Pulse
Asia places minor weight on the so-called command

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Viewed in the light of the legitimate and significant

objectives of Section 5.4, it may be seen that its limiting
impact on the rights of free speech and of the press is not
unduly repressive or unreasonable. Indeed, it is a mere
restriction, not an absolute prohibition, on the publication
of election surveys. It is limited in duration; it applies only
during the period when the voters are presumably
contemplating whom they should elect and when they are

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most susceptible to such unwarranted persuasion. These

surveys may be published thereafter.
Our electoral system and processes are not necessarily
of the same level of political maturity that countries like
the United States and other more developed countries have
attained. It is noteworthy that numerous other countries
recognize the deleterious effects on the electoral process by
the publication of surveys immediately before the elections.
Accordingly, they impose similar restrictions, although
varying as to the periods: Turkey and Luxembourg, 30
days; South Africa, 42 days; Italy, 28 days; Indonesia, 21
days; Peru, Venezuela and Uruguay, 15 days; Poland, 12
days; France, Hungary, Portugal, Switzerland, Chile,
Columbia and Mexico, 7 days; Spain, 5 days; Russia,
Australia and Bolivia, 2 days; Fiji, New Zealand, Armenia,
Belarus,
43
Bulgaria, Croatia, Khazakstan and Lithuania, 1
day.
The reasons advanced in support of Section 5.4, far from
being matters of mere legislative preferences or beliefs
regarding the evils sought to be remedied, sufficiently
justify the restriction on such vital rights as the freedoms
of speech and of the press. It

_______________

votes. Pulse Asia places the command votes at a low 1.5 million votes. The
number, they say, would have no major impact on the election results.
The problem of pollsters is that members of the Iglesia ni Cristo with a voting
strength of at least three million do not participate in surveys. The fact that INC
members are not covered by surveys could distort survey results.
A senatorial candidate, for example, who thinks that he is safe in, say, his
ranking of 8th or 9th might suddenly find himself outside the Magic 13 simply
because the senatorial candidates below him were supported by the INC” and he
was not.

43 Senate Journal, Session No. 22, October 2, 2000, p. 267.

533

VOL. 357, MAY 7, 2001 533

People vs. Palabrica

bears stressing that it is Congress, not this Court, which is

primarily charged with the determination of the need for
regulation of such activities. Thus, insofar as the need for
regulation of the publication of election surveys within the
periods laid down in Section 5.4 is concerned, this Court is

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11/19/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 357

in no position to substitute its judgment as to the

44
necessity
or desirability of the same for that of Congress.
IN VIEW OF THE FOREGOING, I vote to DISMISS
THE PETITION.
Prohibition granted, Sec. 5.4 of RA No. 9006 and Sec.
24(h) of COMELEC Resolution No. 3636 declared
unconstitutional.

Note.—View that the freedom of the press is respected

by the law and by the COMELEC is not a reason to
trample upon the candidates’ constitutional right to free
speech and the people’s right to information. (Osmeña vs.
Commission on Elections, 288 SCRA 447 [1998])

——o0o——

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