Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 102653 March 5, 1992

NATIONAL PRESS CLUB, petitioner, 

vs.
COMMISSION ON ELECTIONS, respondent.

G.R. No. 102925 March 5, 1992

PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO, JR., as its Past Chairman
and President, and FRAULIN A. PEÑASALES as its Corporate Secretary, petitioners, 
vs.
COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN MONSOD, its Chairman;
HON. GUILLERMO CARAGUE and HON. ROSALINA S. CAJUCOM, respondents.

G.R. No. 102983 March 5, 1992

KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI BROADCASTING NETWORK;

MOLAVE BROADCASTING NETWORK; MASBATE COMMUNITY BROADCASTING CO., INC.,
RADIO MINDANAO NETWORK, INC.; ABS-CBN BROADCASTING CORP.; FILIPINAS
BROADCASTING; RADIO PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE
BROADCASTING CORP.; MAGILIW COMMUNITY BROADCASTING CO., INC.; for themselves
and in behalf of the mass media owners as a class; ANDRE S. KHAN; ARCADIO M.
CARANDANG, JR.; MALOU ESPINOSA MANALASTAS; MIGUEL C. ENRIQUEZ; JOSE
ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE E. ESCANER, JR.; RAY G. PEDROCHE;
PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDO RAMIREZ; for themselves as voters
and in behalf of the Philippine electorate as a class; ORLANDO S. MERCADO and
ALEJANDRO de G. RODRIGUEZ; for themselves as prospective candidates and in behalf of
all candidates in the May 1992 election as a class,petitioners, 
vs.
COMMISSION ON ELECTIONS, respondent.

FELICIANO, J.:

In the three (3) consolidated Petitions before us, the common question raised by petitioners is the
constitutionality of Section 11 (b) of Republic Act No. 6646.

Petitioners in these cases consist of representatives of the mass media which are prevented from
selling or donating space and time for political advertisements; two (2) individuals who are
candidates for office (one for national and the other for provincial office) in the coming May 1992
elections; and taxpayers and voters who claim that their right to be informed of election issues and of
credentials of the candidates is being curtailed.
It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and
violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that
the prohibition imposed by Section 11 (b) amounts to censorship, because it selects and singles out
for suppression and repression with criminal sanctions, only publications of a particular content,
namely, media-based election or political propaganda during the election period of 1992. It is
asserted that the prohibition is in derogation of media's role, function and duty to provide adequate
channels of public information and public opinion relevant to election issues. Further, petitioners
contend that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression
of media-based campaign or political propaganda except those appearing in the Comelec space of
the newspapers and on Comelec time of radio and television broadcasts, would bring about a
substantial reduction in the quantity or volume of information concerning candidates and issues in
the election thereby curtailing and limiting the right of voters to information and opinion.

The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of
Republic Act No. 6646, known as the Electoral Reforms Law of 1987:

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;

xxx xxx xxx

b) for any newspapers, radio broadcasting or television station, 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. (Emphasis supplied)

Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P.
Blg. 881, known as the Omnibus Election Code of the Philippines, which provide respectively as
follows:

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 beallocated, free of
charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated.

xxx xxx xxx

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)
The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of
rich and poor candidates by preventing the former from enjoying the undue advantage offered by
huge campaign "war chests." Section 11 (b) prohibits the sale or donation of print space and air time
"for campaign or other political purposes" except to the Commission on Elections ("Comelec"). Upon
the other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to procure
"Comelec space" in newspapers of general circulation in every province or city and "Comelec time"
on radio and television stations. Further, the Comelec is statutorily commanded to allocate "Comelec
space" and "Comelec time" on a free of charge, equal and impartial basis among all candidates
within the area served by the newspaper or radio and television station involved.

No one seriously disputes the legitimacy or the importance of the objective sought to be secured by
Section 11 (b) (of Republic Act No. 6646) in relation to Sections 90 and 92 (of the Omnibus Election
Code). That objective is of special importance and urgency in a country which, like ours, is
characterized by extreme disparity in income distribution between the economic elite and the rest of
society, and by the prevalence of poverty, with the bulk of our population falling below that "poverty
line." It is supremely important, however, to note that objective is not only a concededly legitimate
one; it has also been given constitutional status by the terms of Article IX(C) (4) of the 1987
Constitution which provides as follows:

Sec. 4. The Commission [on Elections] 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)

The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the
enjoyment or utilization of the franchises or permits for the operation of media of communication and
information. The fundamental purpose of such "supervision or regulation" has been spelled out in the
Constitution as the ensuring of "equal opportunity, time, and space, and the right to reply," as well as
uniform and reasonable rates of charges for the use of such media facilities, in connection with
"public information campaigns and forums among candidates." 1

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."2
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 somelimitation of the rights of free speech and
free press. For supervision or regulation of the operations of media enterprises is scarcely
conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-
honored one — that a statute is presumed to be constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly and convincingly proving that assertion. 3

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.

In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of
the limitations resulting from the particular measure being assayed upon freedom of speech and
freedom of the press are essential considerations. It is important to note that the restrictive impact
upon freedom of speech and freedom of the press of Section 11 (b) is circumscribed by certain
important limitations.

Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the
operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to
election periods. By its Resolution No. 2328 dated 2 January 1992, the Comelec, acting under
another specific grant of authority by the Constitution (Article IX [C] [9]), has defined the period from
12 January 1992 until 10 June 1992 as the relevant election period.

Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of
Section 11 (b) shows that it purports to apply only to the purchase and sale, including purchase and
sale disguised as a donation, 4of print space and air time for "campaign or other political purposes."
Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television
stations of news or news-worthy events relating to candidates, their qualifications, political parties and
programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of
candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions
and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11
(b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is
not paid for by candidates for political office. We read Section 11 (b) as designed to cover only paid
political advertisements of particular candidates.

The above limitation in scope of application of Section 11 (b) — that it does not restrict either the
reporting of or the expression of belief or opinion or comment upon the qualifications and programs
and activities of any and all candidates for office — constitutes the critical distinction which must be
made between the instant case and that ofSanidad v. Commission on Elections. 5 In Sanidad, the
Court declared unconstitutional Section 19 of Comelec Resolution No. 2167 which provided as follows:

Sec. 19. Prohibition on Columnists, Commentators or Announcers — During the

plebiscite campaign period, on the day before and on plebiscite day, no mass media
 columnist, commentator, announcer or personality shall use his column or radio or
television time to campaign for or against the plebiscite issues.

Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite
mandated by R.A. No. 6766 on the ratification or adoption of the Organic Act for the Cordillera
Autonomous Region. The Court held that Resolution No. 2167 constituted a restriction of the
freedom of expression of petitioner Sanidad, a newspaper columnist of the Baguio Midland Courier,
"for no justifiable reason." The Court, through Medialdea, J., said:

. . . [N]either Article, IX-C of the Constitution nor Section 11 [b], 2nd par. of R.A. 6646
can be construed to mean that the Comelec has also been granted the right to
supervise and regulate the exercise by media practitioners themselves of their right
to expression during plebiscite periods. Media practitioners exercising their freedom
of expression during plebiscite periods are neither the franchise holders nor the
candidates. In fact, there are no candidates involved in the plebiscite. Therefore,
Section 19 of Comelec Resolution No. 2167 has no statutory basis." 6 (Emphasis
partly in the original and partly supplied)

There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts
from its prohibition the purchase by or donation to the Comelec of print space or air time, which
space and time Comelec is then affirmatively required to allocate on a fair and equal basis, free of
charge, among the individual candidates for elective public offices in the province or city served by
the newspaper or radio or television station. Some of the petitioners are apparently apprehensive
that Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal basis
among the several candidates. Should such apprehensions materialize, candidates who are in fact
prejudiced by unequal or unfair allocations effected by Comelec will have appropriate judicial
remedies available, so long at least as this Court sits. Until such time, however, the Comelec is
entitled to the benefit of the presumption that official duty will be or is being regularly carried out. It
seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral Commission 7 that
the possibility of abuse is no argument against the concession of the power or authority involved, for there
is no power or authority in human society that is not susceptible of being abused. Should it be objected
that the Comelec might refrain from procuring "Comelec time" and "Comelec space," much the same
considerations should be borne in mind. As earlier noted, the Comelec is commanded by statute to buy or
"procure" "Comelec time" and "Comelec space" in mass media, and it must be presumed that Comelec
will carry out that statutory duty in this connection, and if it does fail to do so, once again, the candidate or
candidates who feel aggrieved have judicial remedies at their disposal.

The points that may appropriately be underscored are that Section 11 (b) does not cut off the flow of
media reporting, opinion or commentary about candidates, their qualifications and platforms and
promises. Newspaper, radio broadcasting and television stations remain quite free to carry out their
regular and normal information and communication operations. Section 11 (b) does not authorize
any intervention and much less control on the part of Comelec in respect of the content of the normal
operations of media, nor in respect of the content of political advertisements which the individual
candidates are quite free to present within their respective allocated Comelec time and Comelec
space. There is here no "officious functionary of [a] repressive government" dictating what events or
ideas reporters, broadcasters, editors or commentators may talk or write about or display on TV
screens. There is here no censorship, whether disguised or otherwise. What Section 11 (b), viewed
in context, in fact does is to limitpaid partisan political advertisements to for a other than modern
mass media, and to "Comelec time" and "Comelec space" in such mass media.

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 make a 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.

My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial disparity among
the candidates is a fact of life that cannot be corrected by legislation except only by the limitation of
their respective expenses to a common maximum. The flaw in the prohibition under challenge is that
while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to
spend his funds on other campaign activities also inaccessible to his strained rival." True enough
Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election
Code, place political candidates on complete and perfect equality inter se without regard to their
financial affluence or lack thereof. But a regulatory measure that is less than perfectly
comprehensive or which does not completely obliterate the evil sought to be remedied, is not for that
reason alone constitutionally infirm. The Constitution does not, as it cannot, exact perfection in
governmental regulation. All it requires, in accepted doctrine, is that the regulatory measure under
challenge bear a reasonable nexus with the constitutionally sanctioned objective. That the
supervision or regulation of communication and information media is not, in itself, a forbidden
modality is made clear by the Constitution itself in Article IX (C) (4).

It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech
of the candidates themselves may be seen to be not unduly repressive or unreasonable. For, once
again, there is nothing in Section 11 (b) to prevent media reporting of and commentary on
pronouncements, activities, written statements of the candidates themselves. All other fora remain
accessible to candidates, even for political advertisements. The requisites of fairness and equal
opportunity are, after all, designed to benefit the candidates themselves.

Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be
totally disregarded. Realistically, the only limitation upon the free speech of candidates imposed is
on the right of candidates to bombard the helpless electorate with paid advertisements commonly
repeated in the mass media ad nauseam. Frequently, such repetitive political commercials when fed
into the electronic media themselves constitute invasions of the privacy of the general electorate. It
might be supposed that it is easy enough for a person at home simply to flick off his radio of
television set. But it is rarely that simple. For the candidates with deep pockets may purchase radio
or television time in many, if not all, the major stations or channels. Or they may directly or indirectly
own or control the stations or channels themselves. The contemporary reality in the Philippines is
that, in a very real sense, listeners and viewers constitute a "captive audience." 8

The paid political advertisement introjected into the electronic media and repeated with mind-
deadening frequency, are commonly intended and crafted, not so much to inform and educate as to
condition and manipulate, not so much to provoke rational and objective appraisal of candidates'
qualifications or programs as to appeal to the non-intellective faculties of the captive and passive
audience. The right of the general listening and viewing public to be free from such intrusions and
their subliminal effects is at least as important as the right of candidates to advertise themselves
through modern electronic media and the right of media enterprises to maximize their revenues from
the marketing of "packaged" candidates.

WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Bidin, Griño-Aquino, Medialdea, Regalado, Romero and Nocon,
JJ., concur.

Bellosillo, J., took no part.