Penera vs. COMELEC, G.R.

181613, September 11, 2009

CHICO-NAZARIO, J.:

This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order [1] under Rule 65, in relation to Rule 64 of the Rules of Court, seeks the
nullification of the Resolution[2] dated 30 January 2008 of the Commission on Elections (COMELEC) en
banc. Said Resolution denied the Motion for Reconsideration of the earlier Resolution[3] dated 24 July
2007 of the COMELEC Second Division in SPA No. 07-224, ordering the disqualification of herein
petitioner Rosalinda A. Penera (Penera) as a candidate for the position of mayor of the Municipality of
Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007 Synchronized National and Local Elections.

The antecedents of the case, both factual and procedural, are set forth hereunder:

Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in Sta. Monica
during the 14 May 2007 elections.

On 2 April 2007, Andanar filed before the Office of the Regional Election Director (ORED), Caraga
Region (Region XIII), a Petition for Disqualification[4] against Penera, as well as the candidates for Vice-
Mayor and Sangguniang Bayan who belonged to her political party,[5] for unlawfully engaging in
election campaigning and partisan political activity prior to the commencement of the campaign
period. The petition was docketed as SPA No. 07-224.

Andanar claimed that on 29 March 2007 a day before the start of the authorized campaign period on 30
March 2007 Penera and her partymates went around the different barangays in Sta. Monica, announcing
their candidacies and requesting the people to vote for them on the day of the elections. Attached to the
Petition were the Affidavits of individuals[6] who witnessed the said incident.

Penera alone filed an Answer[7] to the Petition on 19 April 2007, averring that the charge of
premature campaigning was not true. Although Penera admitted that a motorcade did take place, she
explained that it was simply in accordance with the usual practice in nearby cities and provinces, where
the filing of certificates of candidacy (COCs) was preceded by a motorcade, which dispersed soon after
the completion of such filing. In fact, Penera claimed, in the motorcade held by her political party, no
person made any speech, not even any of the candidates. Instead, there was only marching music in the
background and a grand standing for the purpose of raising the hands of the candidates in the
motorcade. Finally, Penera cited Barroso v. Ampig[8] in her defense, wherein the Court supposedly ruled
that a motorcade held by candidates during the filing of their COCs was not a form of political
campaigning.

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 Also on 19 April 2007, Andanar and Penera appeared with their counsels before the ORED-
Region XIII, where they agreed to submit their position papers and other evidence in support of their
allegations.[9]

After the parties filed their respective Position Papers, the records of the case were transmitted to
the COMELEC main office in Manila for adjudication. It was subsequently raffled to the COMELEC
Second Division.

While SPA No. 07-224 was pending before the COMELEC Second Division, the 14 May
2007 elections took place and, as a result thereof, Penera was proclaimed the duly elected Mayor of Sta.
Monica. Penera soon assumed office on 2 July 2002.
On 24 July 2007, the COMELEC Second Division issued its Resolution in SPA No. 07-224,
penned by Commissioner Nicodemo T. Ferrer (Ferrer), which disqualified Penera from continuing as a
mayoralty candidate in Sta. Monica, for engaging in premature campaigning, in violation of Sections 80
and 68 of the Omnibus Election Code.

The COMELEC Second Division found that:

On the afternoon of 29 March 2007, the 1st [sic] day to file the certificates of
candidacy for local elective positions and a day before the start of the campaign period for
the May 14, 2007 elections [some of the members of the political party Partido Padajon
Surigao], headed by their mayoralty candidate Datty Penera, filed their respective
Certificates of Candidacy before the Municipal Election Officer of Sta. Monica, Surigao
del Norte.

Accompanied by a bevy of supporters, [Penera and her partymates] came to the

municipal COMELEC office on board a convoy of two (2) trucks and an undetermined
number of motorcycles, laden with balloons ad [sic] posters/banners containing names and
pictures and the municipal positions for which they were seeking election. Installed with
[sic] one of the trucks was a public speaker sound subsystem which broadcast [sic] the
intent the [sic] run in the coming elections. The truck had the posters of Penera attached to
it proclaiming his [sic] candidacy for mayor. The streamer of [Mar Longos, a candidate for
the position of Board Member,] was proudly seen at the vehicles side. The group proceeded
to motorcade until the barangays of Bailan, Libertad and as afar [sic] as Mabini almost nine
(9) kilometers from Sta. Monica. [Penera and her partymates] were seen aboard the
vehicles and throwing candies to the residents and onlookers.

Various affidavits and pictures were submitted elucidating the above-mentioned

facts. The above facts were also admitted in the Answer, the Position Paper and during the
hearings conducted for this case, the only defense propounded by [Penera] is that such acts
allegedly do not constitute campaigning and is therefore not proscribed by the pertinent
election laws.

xxxx
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 What we however find disturbing is [Peneras] reference to the Ampig Case as the
justification for the acts committed by [her]. There is really no reference to the acts or
similar acts committed by [Penera] as having been considered as not constituting political
campaign or partisan political activity. The issue in that case is whether or not the defect
of the lack of a certification against non-forum [sic] shopping should result to the
immediate dismissal of the election cases filed in that case. There is nothing in said case
justifying a motorcade during the filing of certificates of candidacy. [Peneras] reliance
thereon is therefore misplaced and of no potency at all.

xxxx

However, the photos submitted by [Andanar] only identified [Penera] and did not
have any notation identifying or indicating any of the other [candidates from Peneras
party]. It cannot be conclusively proven that the other [candidates from Peneras party] were
indeed with Penera during the Motorcade. More importantly, the Answer and the Position
Paper contain admissions referring only to [Penera]. There is therefore no justification for
a whole sale [sic] disqualification of all the [candidates from Peneras party], as even the
petition failed to mention particularly the participation of the other individual [party
members].[10]

The afore-quoted findings of fact led the COMELEC Second Division to decree:

PREMISES CONSIDERED, this Commission resolves to disqualify [Penera] but absolves

the other [candidates from Peneras party] from violation of section 80 and 68 of the
Omnibus Elections [sic] Code.[11]

Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion[12] on the 24 July
2007 Resolution. Although Commissioner Tuason concurred with the ponente, he stressed that, indeed,
Penera should be made accountable for her actions after the filing of her COC on 29 March 2007. Prior
thereto, there was no candidate yet whose candidacy would have been enhanced by the premature
campaigning.

It was the third member of the COMELEC Second Division, Commissioner Rene V. Sarmiento
(Sarmiento) who put forth a Dissenting Opinion[13] on the 24 July 2007Resolution. Commissioner
Sarmiento believed that the pieces of evidence submitted by Andanar did not sufficiently establish
probable cause that Penera engaged in premature campaigning, in violation of Sections 80 and 68 of the
Omnibus Election Code. The two photocopied pictures, purporting to be those of Penera, did not clearly
reveal what was actually happening in the truck or who were the passengers thereof. Likewise, the
Affidavits seemed to have been prepared and executed by one and the same person because they had
similar sentence construction and form, and they were sworn to before the same attesting officer.

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 Penera filed before the COMELEC en banc a Motion for Reconsideration[14] of the 24 July 2007
Resolution of the COMELEC Second Division, maintaining that she did not make any admission on the
factual matters stated in the appealed resolution. Penera also contended that the pictures and Affidavits
submitted by Andanar should not have been given any credence. The pictures were mere photocopies of
the originals and lacked the proper authentication, while the Affidavits were taken ex parte, which would
almost always make them incomplete and inaccurate. Subsequently, Penera filed a Supplemental Motion
for Reconsideration,[15] explaining that supporters spontaneously accompanied Penera and her fellow
candidates in filing their COCs, and the motorcade that took place after the filing was actually part of the
dispersal of said supporters and their transportation back to their respective barangays.

In the Resolution dated 30 January 2008, the COMELEC en banc denied Peneras Motion for
Reconsideration, disposing thus:

WHEREFORE, this Commission RESOLVES to DENY the instant Motion for

Reconsideration filed by [Penera] for UTTER LACK OF MERIT.[16]

The COMELEC en banc ruled that Penera could no longer advance the arguments set forth in her
Motion for Reconsideration and Supplemental Motion for Reconsideration, given that she failed to first
express and elucidate on the same in her Answer and Position Paper. Penera did not specifically deny the
material averments that the motorcade went as far as Barangay Mabini, announcing their candidacy and
requesting the people to vote for them on Election Day, despite the fact that the same were clearly
propounded by Andanar in his Petition for Disqualification and Position Paper. Therefore, these material
averments should be considered admitted. Although the COMELEC en banc agreed that no undue
importance should be given to sworn statements or affidavits submitted as evidence, this did not mean
that such affidavits should not be given any evidentiary weight at all. Since Penera neither refuted the
material averments in Andanars Petition and the Affidavits attached thereto nor submitted countervailing
evidence, then said Affidavits, even if taken ex parte, deserve some degree of importance. The
COMELEC en banc likewise conceded that the pictures submitted by Andanar as evidence would have
been unreliable, but only if they were presented by their lonesome. However, said pictures, together with
Peneras admissions and the Affidavits of Andanars witnesses, constituted sufficient evidence to establish
Peneras violation of the rule against premature campaigning. Lastly, the COMELEC en banc accused
Penera of deliberately trying to mislead the Commission by citing Barroso, given that the said case was
not even remotely applicable to the case at bar.

Consistent with his previous stand, Commissioner Sarmiento again dissented[17] from the 30
January 2008 Resolution of the COMELEC en banc. He still believed that Andanar was not able to
adduce substantial evidence that would support the claim of violation of election laws. Particularly,
Commissioner Sarmiento accepted Peneras explanation that the motorcade conducted after the filing by

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Penera and the other candidates of their COCs was merely part of the dispersal of the spontaneous
gathering of their supporters. The incident was only in accord with normal human social experience.

Still undeterred, Penera filed the instant Petition before us, praying that the Resolutions dated 24
July 2007 and 30 January 2008 of the COMELEC Second Division and en banc, respectively, be declared
null and void for having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction.

In a Resolution[18] dated 4 March 2008, we issued a Temporary Restraining Order (TRO),

enjoining the COMELEC from implementing the assailed Resolutions, on the condition that Penera post
a bond in the amount of P5,000.00. We also directed COMELEC and Andanar to comment on the instant
Petition.

After the COMELEC, through the Office of the Solicitor General (OSG), and Andanar filed their
respective Comments[19] on the Petition at bar, we required Penera, in a Resolution[20] dated 17 June
2008, to file a Reply. However, as no Reply was filed in due time, we dismissed Peneras Petition in a
Resolution[21] dated 14 October 2008, in accordance with Rule 56, Section 5(e) of the Rules of
Court.[22] Penera subsequently filed an Ex Parte Motion to Admit Reply,[23] which we treated as a Motion
for Reconsideration of the Resolution dated 14 October 2008. On 11 November 2008, we issued another
Resolution reinstating Peneras Petition.[24]

Penera presents the following issues for our consideration:

I.

Whether or not [Penera] has engaged in an election campaign or partisan political activity
outside the campaign period.

II.

Whether the contents of the complaint are deemed admitted for failure of [Penera] to
specifically deny the same.

III.

Whether or not [Andanar] has presented competent and substantial evidence to justify a
conclusion that [Penera] violated Section 80 and 68 of the Omnibus Election Code.

IV.

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack
of or in excess of jurisdiction in finding that the act of [Penera] in conducting a motorcade
before the filing of her certificate of candidacy constitutes premature campaigning.

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 V.

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack
of or in excess of jurisdiction when it resolves [sic] to disqualify [Penera] despite the failure
of [Andanar] to present competent, admissible and substantial evidence to prove [the]
violation of Section 68 and 80 of the Omnibus Election Code.

Penera claims that the COMELEC exercised its discretion despotically, arbitrarily and
whimsically in disqualifying her as a mayoralty candidate in Sta. Monica on the ground that she engaged
in premature campaigning. She asserts that the evidence adduced by Andanar was grossly insufficient to
warrant the ruling of the COMELEC.

Penera insists that the COMELEC Second Division erred in its findings of fact, basically adopting
Andanars allegations which, contrary to the belief of the COMELEC Second Division, Penera never
admitted. Penera maintains that the motorcade was spontaneous and unplanned, and the supporters
merely joined Penera and the other candidates from her party along the way to, as well as within the
premises of, the office of the COMELEC Municipal Election Officer. Andanars averments that after
Penera and the other candidates from her party filed their COCs, they held a motorcade in the
different barangays of Sta. Monica, waived their hands to the public and threw candies to the onlookers
were not supported by competent substantial evidence. Echoing Commissioner Sarmientos dissent from
the assailed COMELEC Resolutions, Penera argues that too much weight and credence were given to
the pictures and Affidavits submitted by Andanar. The declaration by the COMELEC that it was Penera
in the pictures is tenuous and erroneous, as the COMELEC has no personal knowledge of Peneras
identity, and the said pictures do not clearly reveal the faces of the individuals and the contents of the
posters therein. In the same vein, the Affidavits of Andanars known supporters, executed almost a month
after Andanar filed his Petition for Disqualification before the ORED-Region XIII, were obviously
prepared and executed by one and the same person, because they have a similar sentence construction,
and computer font and form, and were even sworn to before the same attesting officer on the same date.

We find no merit in the instant Petition.

The questions of fact

Crystal clear from the above arguments is that Penera is raising only questions of fact in her
Petition presently before us. We do not find any reason to pass upon the same, as this Court is not a trier
of facts. It is not the function of the Court to review, examine and evaluate or weigh the probative value
of the evidence presented. A question of fact would arise in such an event.

The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse
of discretion, and it does not include a review of the tribunals evaluation of the evidence.[25] Because of

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its fact-finding facilities and its knowledge derived from actual experience, the COMELEC is in a
peculiarly advantageous position to evaluate, appreciate and decide on factual questions before it. Factual
findings of the COMELEC, based on its own assessments and duly supported by evidence, are conclusive
on this Court, more so in the absence of a grave abuse of discretion, arbitrariness, fraud, or error of law
in the questioned resolutions. Unless any of these causes are clearly substantiated, the Court will not
interfere with the findings of fact of the COMELEC.[26]

Grave abuse of discretion is such capricious and whimsical exercise of judgment equivalent to
lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as when it is exercised
arbitrarily or despotically by reason of passion or personal hostility. The abuse must be so patent and so
gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law.[27]

We find no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
COMELEC Second Division in disqualifying Penera as a mayoralty candidate in Sta. Monica in the
Resolution dated 24 July 2007; and also on the part of the COMELEC en banc in denying Peneras
Motion for Reconsideration on the Resolution dated 30 January 2008. Said Resolutions are sufficiently
supported by substantial evidence, meaning, such evidence as a reasonable mind might accept as
adequate to support a conclusion.[28]

The prohibited act of premature campaigning is defined under Section 80 of the Omnibus Election
Code, to wit:

SECTION 80. Election campaign or partisan political activity outside campaign period. It
shall be unlawful for any person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election campaign or partisan
political activity except during the campaign period: Provided, That political parties
may hold political conventions or meetings to nominate their official candidates
within thirty days before the commencement of the campaign period and forty-five days
for Presidential and Vice-Presidential election. (Emphasis ours.)

If the commission of the prohibited act of premature campaigning is duly proven, the consequence
of the violation is clearly spelled out in Section 68 of the said Code, which reads:

SECTION. 68. Disqualifications. - Any candidate who, in an action or protest in which he

is a party is declared by final decision of a competent court guilty of, or found by the
Commission of having xxx (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs
d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate,
or if he has been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent resident or

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 immigrant of a foreign country in accordance with the residence requirement provided for
in the election laws. (Emphases ours.)

In the case at bar, it had been sufficiently established, not just by Andanars evidence, but also
those of Penera herself, that Penera and her partymates, after filing their COCs on 29 March 2007,
participated in a motorcade which passed through the different barangays of Sta. Monica, waived their
hands to the public, and threw candies to the onlookers.

Indeed, Penera expressly admitted in her Position Paper that:

Respondents actually had a motorcade of only two (2) jeppneys [sic] and ten (10)
motorcycles after filing their Certificate of Candidacy at 3:00 P.M., March 29,
2007 without any speeches made and only one streamer of a board member Candidate and
multi-colored balloons attached to the jeppneys [sic] and motorcycles.[29] (Emphasis ours.)

Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante Platil, attached to
Peneras Position Paper, gave an even more straightforward account of the events, thus:

1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao del Norte, Mayoralty
Candidates Rosalinda CA. Penera [sic] and her parties of four (4) kagawads filed their
certificate of candidacy at the COMELEC Office;

2. That their [sic] was a motorcade consisting of two jeppneys [sic] and 10
motorcycles after actual registration with the COMELEC with jeeps decorated with
balloons and a streamer of Margarito Longos, Board Member Candidate;

3. That the motorcade proceeded to three (3) barangays out of the 11 barangays
while supporters were throwing sweet candies to the crowd;

4. That there was merriment and marching music without mention of any name of
the candidates more particularly lead-candidate Rosalinda CA. Penera [sic];

5. That we were in the motorcade on that afternoon only riding in one of the
jeepneys.[30] (Emphases ours.)

In view of the foregoing admissions by Penera and her witnesses, Penera cannot now be allowed
to adopt a conflicting position.

More importantly, the conduct of a motorcade is a form of election campaign or partisan political
activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus Election Code, on [h]olding
political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
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soliciting votes and/or undertaking any campaign or propaganda for or against a candidate[.] A
motorcade is a procession or parade of automobiles or other motor vehicles.[31] The conduct thereof
during election periods by the candidates and their supporters is a fact that need not be belabored due to
its widespread and pervasive practice. The obvious purpose of the conduct of motorcades is to introduce
the candidates and the positions, to which they seek to be elected, to the voting public; or to make them
more visible so as to facilitate the recognition and recollection of their names in the minds of the voters
come election time. Unmistakably, motorcades are undertaken for no other purpose than to promote the
election of a particular candidate or candidates.

In the instant Petition, Penera never denied that she took part in the conduct of the motorcade after
she filed her COC on the day before the start of the campaign period.She merely claimed that the same
was not undertaken for campaign purposes. Penera proffered the excuse that the motorcade was already
part of the dispersal of the supporters who spontaneously accompanied Penera and her partymates in
filing their COCs. The said supporters were already being transported back to their
respective barangays after the COC filing. Penera stressed that no speech was made by any person, and
there was only background marching music and a grand standing for the purpose of raising the hands of
the candidates in the motorcade.

We are not convinced.

As we previously noted, Penera and her witnesses admitted that the vehicles, consisting of two
jeepneys and ten motorcycles, were festooned with multi-colored balloons; the motorcade went around
three barangays in Sta. Monica; and Penera and her partymates waved their hands and threw sweet
candies to the crowd. With vehicles, balloons, and even candies on hand, Penera can hardly persuade us
that the motorcade was spontaneous and unplanned.

For violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan
political activity outside the campaign period, Penera must be disqualified from holding the office of
Mayor of Sta. Monica.

The questions of law

The dissenting opinion, however, raises the legal issue that Section 15 of Republic Act No. 8436, as
amended by Republic Act No. 9369, provides a new definition of the term candidate, as a result of which,
premature campaigning may no longer be committed.

Under Section 79(a) of the Omnibus Election Code, a candidate is any person aspiring for or seeking an
elective public office, who has filed a certificate of candidacy by himself or through an accredited
political party, aggroupment, or coalition of parties.

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 Republic Act No. 8436,[32] enacted on 22 December 1997, authorized the COMELEC to use an
automated election system for the process of voting, counting of votes, and canvassing/consolidating the
results of the national and local elections. The statute also mandated the COMELEC to acquire automated
counting machines, computer equipment, devices and materials; and to adopt new electoral forms and
printing materials. In particular, Section 11 of Republic Act No. 8436 provided for the specifications of
the official ballots to be used in the automated election system and the guidelines for the printing thereof,
the relevant portions of which state:
SECTION 11. Official ballot. - The Commission shall prescribe the size and form of the
official ballot which shall contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged alphabetically by surname and
uniformly printed using the same type size. A fixed space where the chairman of the Board
of Election inspectors shall affix his/her signature to authenticate the official ballot shall
be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one
hundred twenty (120) days before the elections: Provided, That, any elective official,
whether national or local, running for any office other than the one which he/she is holding
in a permanent capacity, except for president and vice-president, shall be deemed resigned
only upon the start of the campaign period corresponding to the position for which he/she
is running: Provided, further, That, unlawful acts or omissions applicable to a
candidate shall take effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the
certificate of candidacy for the positions of President, Vice President, Senators and
candidates under the Party-List System as well as petitions for registration and/or
manifestation to participate in the Party-List System shall be on February 9, 1998 while
the deadline for the filing of certificate of candidacy for other positions shall be on March
27, 1998. (Emphases ours.)

On 10 February 2007, Republic Act No. 9369[33] took effect. Section 13 of Republic Act No. 9369
amended Section 11 of Republic Act No. 8436 and renumbered the same as the new Section 15 of
Republic Act No. 8436. The pertinent portions of Section 15 of Republic Act No. 8436, as amended by
Republic Act No. 9369, now read:
SECTION.15. Official Ballot. - The Commission shall prescribe the format of the
electronic display and/or the size and form of the official ballot, which shall contain the
titles of the position to be filled and/or the proposition to be voted upon in an initiative,
referendum or plebiscite. Where practicable, electronic displays must be constructed to
present the names of all candidates for the same position in the same page or screen,
otherwise, the electronic displays must be constructed to present the entire ballot to the
voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot
options on all pages before completing his or her vote and to allow the voter to review and
10 | P a g e
 change all ballot choices prior to completing and casting his or her ballot. Under each
position to be filled, the names of candidates shall be arranged alphabetically by surname
and uniformly indicated using the same type size. The maiden or married name shall be
listed in the official ballot, as preferred by the female candidate. Under each proposition to
be vote upon, the choices should be uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspector shall affix her/her
signature to authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to participate in the election. Any person
who files his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall
effect only upon the start of the aforesaid campaign period: Provided, finally, That any
person holding a public appointive office or position, including active members of the
armed forces, and officers, and employees in government-owned or-controlled
corporations, shall be considered ipso factor resigned from his/her office and must vacate
the same at the start of the day of the filing of his/her certification of candidacy. (Emphases
ours.)
In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended, the Dissenting
Opinion argues that Section 80 of the Omnibus Election Code can not be applied to the present case
since, as the Court held in Lanot v. Commission on Elections,[34] the election campaign or partisan
activity, which constitute the prohibited premature campaigning, should be designed to promote the
election or defeat of a particular candidate or candidates. Under present election laws, while a person
may have filed his/her COC within the prescribed period for doing so, said person shall not be considered
a candidate until the start of the campaign period. Thus, prior to the start of the campaign period, there
can be no election campaign or partisan political activity designed to promote the election or defeat of a
particular candidate to public office because there is no candidate to speak of.

According to the Dissenting Opinion, even if Peneras acts before the start of the campaign period
constitute election campaigning or partisan political activities, these are not punishable under Section 80
of the Omnibus Election Code given that she was not yet a candidate at that time. On the other hand,
Peneras acts, if committed within the campaign period, when she was already a candidate, are likewise
not covered by Section 80 as this provision punishes only acts outside the campaign period.

The Dissenting Opinion ultimately concludes that because of Section 15 of Republic Act No. 8436, as
amended, the prohibited act of premature campaigning in Section 80 of the Omnibus Election Code, is
practically impossible to commit at any time.

We disagree. Section 80 of the Omnibus Election Code remains relevant and applicable despite Section
15 of Republic Act No. 8436, as amended.
A close reading of the entire Republic Act No. 9369, which amended Republic Act No. 8436, would
readily reveal that that it did not contain an express repeal of Section 80 of the Omnibus Election

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Code. An express repeal is one wherein a statute declares, usually in its repealing clause, that a
particular and specific law, identified by its number or title, is repealed.[35] Absent this specific
requirement, an express repeal may not be presumed.

Although the title of Republic Act No. 9369 particularly mentioned the amendment of Batas
Pambansa Blg. 881, or the Omnibus Election Code, to wit:

An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission
on Elections to Use an Automated Election System x x x, Amending for the Purpose
Batas Pambansa Blg. 881, As Amended x x x. (Emphasis ours.),

said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa Blg. 881. Such fact
is indeed very material. Repeal of a law means its complete abrogation by the enactment of a subsequent
statute, whereas the amendment of a statute means an alteration in the law already existing, leaving some
part of the original still standing.[36]Section 80 of the Omnibus Election Code is not even one of the
specific provisions of the said code that were expressly amended by Republic Act No. 9369.

Additionally, Section 46,[37] the repealing clause of Republic Act No. 9369, states that:

Sec. 46. Repealing Clause. All laws, presidential decrees, executive orders, rules and
regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed
or modified accordingly.

Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause which predicates the
intended repeal under the condition that a substantial conflict must be found in existing and prior
acts. The failure to add a specific repealing clause indicates that the intent was not to repeal any existing
law, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old
laws. This latter situation falls under the category of an implied repeal.[38]

Well-settled is the rule in statutory construction that implied repeals are disfavored. In order to effect a
repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant with the
existing law that they cannot be made to reconcile and stand together. The clearest case possible must be
made before the inference of implied repeal may be drawn, for inconsistency is never presumed. There
must be a showing of repugnance clear and convincing in character. The language used in the later statute
must be such as to render it irreconcilable with what had been formerly enacted. An inconsistency that
falls short of that standard does not suffice.[39]

Courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile the
same instead of declaring outright the invalidity of one as against the other. Such alacrity should be
avoided. The wise policy is for the judge to harmonize them if this is possible, bearing in mind that they

12 | P a g e
are equally the handiwork of the same legislature, and so give effect to both while at the same time also
according due respect to a coordinate department of the government.[40]
To our mind, there is no absolute and irreconcilable incompatibility between Section 15 of Republic
Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which defines the prohibited
act of premature campaigning. It is possible to harmonize and reconcile these two provisions and, thus,
give effect to both.
The following points are explanatory:

First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly provides that [i]t
shall be unlawful for any person, whether or not a voter or candidate,or for any party, or association
of persons, to engage in an election campaign or partisan political activity, except during the campaign
period. Very simply, premature campaigning may be committed even by a person who is not a
candidate.

For this reason, the plain declaration in Lanot that [w]hat Section 80 of the Omnibus Election Code
prohibits is an election campaign or partisan political activity by a candidateoutside of the campaign
period,[41] is clearly erroneous.

Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan political
activity in the following manner:

SECTION 79. Definitions. - As used in this Code:

xxxx

(b) The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or candidates to a
public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of

persons for the purpose of soliciting votes and/or undertaking any campaign for or
against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other

similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign
or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for

or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support

or oppose the election of any candidate; or

13 | P a g e
 (5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC
but before the start of the campaign period, a person is not yet officially considered
a candidate. Nevertheless, a person, upon the filing of his/her COC, already explicitly declares
his/her intention to run as a candidate in the coming elections. The commission by such a person of any
of the acts enumerated under Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades,
making speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of promoting
his/her intended candidacy.

When the campaign period starts and said person proceeds with his/her candidacy, his/her intent
turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to
the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature
campaigning, for which he/she may be disqualified. Also, conversely, if said person, for any reason,
withdraws his/her COC before the campaign period, then there is no point to view his/her acts prior to
said period as acts for the promotion of his/her election as a candidate. In the latter case, there can be no
premature campaigning as there is no candidate, whose disqualification may be sought, to begin with.[42]

Third, in connection with the preceding discussion, the line in Section 15 of Republic Act No. 8436, as
amended, which provides that any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period, does not mean that the acts constituting premature
campaigning can only be committed, for which the offender may be disqualified, during the campaign
period. Contrary to the pronouncement in the dissent, nowhere in the said proviso was it stated that
campaigning before the start of the campaign period is lawful, such that the offender may freely carry
out the same with impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate
(thus, prior to the start of the campaign period), can already commit the acts described under Section
79(b) of the Omnibus Election Code as election campaign or partisan political activity. However, only
after said person officially becomes a candidate, at the beginning of the campaign period, can said acts
be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after
said person officially becomes a candidate, at the start of the campaign period, can
his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at
the start of the campaign period, when the person officially becomes a candidate, that the undue
and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue
to his/her benefit. Compared to the other candidates who are only about to begin their election
campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair
headstart in promoting his/her candidacy.

14 | P a g e
As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections 80 and 79 of
the Omnibus Election Code, as well as Section 15 of Republic Act No. 8436, as amended, is not only
very possible, but in fact desirable, necessary and consistent with the legislative intent and policy of the
law.

The laudable and exemplary intention behind the prohibition against premature campaigning, as declared
in Chavez v. Commission on Elections,[43] is to level the playing field for candidates of public office, to
equalize the situation between the popular or rich candidates, on one hand, and lesser-known or poorer
candidates, on the other, by preventing the former from enjoying undue advantage in exposure and
publicity on account of their resources and popularity. The intention for prohibiting premature
campaigning, as explained in Chavez, could not have been significantly altered or affected by Republic
Act No. 8436, as amended by Republic Act No. 9369, the avowed purpose of which is to carry-on the
automation of the election system. Whether the election would be held under the manual or the
automated system, the need for prohibiting premature campaigning to level the playing field
between the popular or rich candidates, on one hand, and the lesser-known or poorer candidates,
on the other, by allowing them to campaign only within the same limited period remains.

We cannot stress strongly enough that premature campaigning is a pernicious act that is continuously
threatening to undermine the conduct of fair and credible elections in our country, no matter how great
or small the acts constituting the same are. The choice as to who among the candidates will the voting
public bestow the privilege of holding public office should not be swayed by the shrewd conduct, verging
on bad faith, of some individuals who are able to spend resources to promote their candidacies in advance
of the period slated for campaign activities.

Verily, the consequences provided for in Section 68[44] of the Omnibus Election Code for the commission
of the prohibited act of premature campaigning are severe: the candidate who is declared guilty of
committing the offense shall be disqualified from continuing as a candidate, or, if he/she has been elected,
from holding office. Not to mention that said candidate also faces criminal prosecution for an election
offense under Section 262 of the same Code.

The Dissenting Opinion, therefore, should not be too quick to pronounce the ineffectiveness
or repeal of Section 80 of the Omnibus Election Code just because of a change in the meaning
of candidate by Section 15 of Republic Act No. 8436, as amended, primarily, for administrative
purposes. An interpretation should be avoided under which a statute or provision being construed is
defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or
rendered insignificant, meaningless, inoperative, or nugatory.[45] Indeed, not only will the prohibited act
of premature campaigning be officially decriminalized, the value and significance of having a campaign
period before the conduct of elections would also be utterly negated. Any unscrupulous individual with
the deepest of campaign war chests could then afford to spend his/her resources to promote his/her

15 | P a g e
candidacy well ahead of everyone else. Such is the very evil that the law seeks to prevent. Our lawmakers
could not have intended to cause such an absurd situation.

The Dissenting Opinion attempts to brush aside our preceding arguments by contending that there is no
room for statutory construction in the present case since Section 15 of Republic Act No. 8436,[46] as
amended by Section 13 of Republic Act No. 9369,[47] is crystal clear in its meaning. We disagree. There
would only be no need for statutory construction if there is a provision in Republic Act No. 8436 or
Republic Act No. 9369 that explicitly states that there shall be no more premature campaigning. But
absent the same, our position herein, as well as that of the Dissenting Opinion, necessarily rest on our
respective construction of the legal provisions involved in this case.

Notably, while faulting us for resorting to statutory construction to resolve the instant case, the
Dissenting Opinion itself cites a rule of statutory construction, particularly, that penal laws should be
liberally construed in favor of the offender. The Dissenting Opinion asserts that because of the third
paragraph in Section 15 of Republic Act No. 8436, as amended, the election offense described in Section
80 of the Omnibus Election Code is practically impossible to commit at any time and that this flaw in
the law, which defines a criminal act, must be construed in favor of Penera, the offender in the instant
case.

The application of the above rule is uncalled for. It was acknowledged in Lanot that a
disqualification case has two aspects: one, electoral;[48] the other, criminal.[49] The instant case concerns
only the electoral aspect of the disqualification case. Any discussion herein on the matter of Peneras
criminal liability for premature campaigning would be nothing more than obiter dictum. More
importantly, as heretofore already elaborated upon, Section 15 of Republic Act No. 8436, as amended,
did not expressly or even impliedly repeal Section 80 of the Omnibus Election Code, and these two
provisions, based on legislative intent and policy, can be harmoniously interpreted and given
effect. Thus, there is no flaw created in the law, arising from Section 15 of Republic Act No. 8436, as
amended, which needed to be construed in Peneras favor.

The Dissenting Opinion further expresses the fear that pursuant to our theory, all the politicians with
infomercials prior to the filing of their COCs would be subject to disqualification, and this would involve
practically all the prospective presidential candidates who are now leading in the surveys.

This fear is utterly unfounded. It is the filing by the person of his/her COC through which
he/she explicitly declares his/her intention to run as a candidate in the coming elections. It is such
declaration which would color the subsequent acts of said person to be election campaigning or partisan
political activities as described under Section 79(b) of the Omnibus Election Code. It bears to point out
that, at this point, no politician has yet submitted his/her COC. Also, the plain solution to this rather

16 | P a g e
misplaced apprehension is for the politicians themselves to adhere to the letter and intent of the law and
keep within the bounds of fair play in the pursuit of their candidacies. This would mean that after filing
their COCs, the prudent and proper course for them to take is to wait for the designated start of the
campaign period before they commence their election campaign or partisan political activities. Indeed,
such is the only way for them to avoid disqualification on the ground of premature campaigning. It is not
for us to carve out exceptions to the law, much more to decree away the repeal thereof, in order to
accommodate any class of individuals, where no such exception or repeal is warranted.

Lastly, as we have observed at the beginning, Peneras Petition is essentially grounded on questions of
fact. Peneras defense against her disqualification, before the COMELEC and this Court, rests on the
arguments that she and her partymates did not actually hold a motorcade; that their supporters
spontaneously accompanied Penera and the other candidates from her political party when they filed their
certificates of candidacy; that the alleged motorcade was actually the dispersal of the supporters of Penera
and the other candidates from her party as said supporters were dropped off at their respective barangays;
and that Andanar was not able to present competent, admissible, and substantial evidence to prove that
Penera committed premature campaigning. Penera herself never raised the argument that she can no
longer be disqualified for premature campaigning under Section 80, in relation to Section 68, of
the Omnibus Election Code, since the said provisions have already been, in the words of the
Dissenting Opinion, rendered inapplicable, repealed, and done away with by Section 15 of Republic
Act No. 8436, as amended. This legal argument was wholly raised by the Dissenting Opinion.

As a rule, a party who deliberately adopts a certain theory upon which the case is tried and decided by
the lower court will not be permitted to change theory on appeal. Points of law, theories, issues, and
arguments not brought to the attention of the lower court need not be, and ordinarily will not be,
considered by a reviewing court, as these cannot be raised for the first time at such late stage. Basic
considerations of due process underlie this rule.[50] If we do not allow and consider the change in theory
of a case by a party on appeal, should we not also refrain from motu proprio adopting a theory which
none of the parties even raised before us?
Nonetheless, the questions of fact raised by Penera and questions of law raised by the Dissenting Opinion
must all be resolved against Penera. Penera should be disqualified from holding office as Mayor of Sta.
Monica for having committed premature campaigning when, right after she filed her COC, but still a day
before the start of the campaign period, she took part in a motorcade, which consisted of two jeepneys
and ten motorcycles laden with multi-colored balloons that went around several barangays of Sta.
Monica, and gave away candies to the crowd.

Succession

Despite the disqualification of Penera, we cannot grant Andanars prayer to be allowed to assume
the position of Mayor of Sta. Monica. The well-established principle is that the ineligibility of a candidate

17 | P a g e
receiving majority votes does not entitle the candidate receiving the next highest number of votes to be
declared elected.[51]

In this case, the rules on succession under the Local Government Code shall apply, to wit:

SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,

Mayor, and Vice-Mayor. If a permanent vacancy occurs in the office of
the xxx mayor, the x x x vice-mayor concerned shall become the x x x mayor.

xxxx

For purposes of this Chapter, a permanent vacancy arises when an elective local official
fills a higher vacant office, refuses to assume office, fails to qualify or is removed from
office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the
functions of his office. (Emphases ours.)

Considering Peneras disqualification from holding office as Mayor of Sta. Monica, the proclaimed
Vice-Mayor shall then succeed as Mayor.

WHEREFORE, premises considered, the instant Petition for Certiorari is hereby DISMISSED. The
Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and en banc,
respectively, in SPA No. 07-224 are hereby AFFIRMED. In view of the disqualification of petitioner
Rosalinda A. Penera from running for the office of Mayor of Sta. Monica, Surigao del Norte, and the
resulting permanent vacancy therein, it is hereby DECLARED that the proclaimed Vice-Mayor is the
rightful successor to said office. The Temporary Restraining Order issued on 4 March 2008 is
hereby ORDERED lifted. Costs against the petitioner.

SO ORDERED.

National Press Club vs. COMELEC, G.R. No. 102653 March 5, 1992

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

18 | P a g e
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 be allocated, 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
19 | P a g e
 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
20 | P a g e
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 some limitation 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, 4 of print space and air time for "campaign or other political purposes." Section
11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations
of news or 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
21 | P a g e
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 of Sanidad 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 Commission7 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

22 | P a g e
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

23 | P a g e
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.

Adiong vs. COMELEC, G.R. No. 103956 March 31, 1992

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may
prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location
or publication to the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted
by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election
laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other
written or printed materials not more than eight and one-half (8-1/2) inches in width and
24 | P a g e
 fourteen (14) inches in length. Provided, That decals and stickers may be posted only in
any of the authorized posting areas provided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda.

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in
any place, whether public or private, mobile or stationary, except in the COMELEC
common posted areas and/or billboards, at the campaign headquarters of the candidate or
political party, organization or coalition, or at the candidate's own residential house or
one of his residential houses, if he has more than one:Provided, that such posters or
election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis
supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election
Code on lawful election propaganda which provides:

Lawful election propaganda. Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a
size not more than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular
candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not
exceeding two feet by three feet, except that, at the site and on the occasion of a public
meeting or rally, or in announcing the holding of said meeting or rally, streamers not
exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers
may not be displayed except one week before the date of the meeting or rally and that it
shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and hearing where all
the interested parties were given an equal opportunity to be heard: Provided, That the
Commission's authorization shall be published in two newspapers of general circulation
throughout the nation for at least twice within one week after the authorization has been
granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

25 | P a g e
 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: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election
propaganda in any place, whether private, or public, except in the common poster
areas and/or billboards provided in the immediately preceding section, at the candidate's
own residence, or at the campaign headquarters of the candidate or political
party: Provided, That such posters or election propaganda shall in no case exceed two (2)
feet by three (3) feet in area: Provided, Further, That at the site of and on the occasion of
a public meeting or rally, streamers, not more than two (2) and not exceeding three (3)
feet by eight (8) feet each may be displayed five (5) days before the date of the meeting
or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . .
. (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the
COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like
cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the
Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner
believes that with the ban on radio, television and print political advertisements, he, being a neophyte
in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of
decals and stickers on cars and other moving vehicles would be his last medium to inform the
electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states
that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the
Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on
"mobile" places whether public or private except in designated areas provided for by the COMELEC
itself is null and void on constitutional grounds.

First the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in
the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind
of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part
and parcel of our own Bill of Rights provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech
the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v.
Commission on Elections, 36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the
indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937];
Salonga v. Pao, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill
of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or
persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686
26 | P a g e
[1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National
Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will deny to people the robust,
uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free,
clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect
when what may be curtailed is the dissemination of information to make more meaningful the equally
vital right of suffrage. (Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his
basic freedoms in order to promote fundamental public interests or policy objectives is always a
difficult and delicate task. The so-called balancing of interests individual freedom on one hand and
substantial public interests on the other is made even more difficult in election campaign cases
because the Constitution also gives specific authority to the Commission on Elections to supervise the
conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted
regulatory powers vis-a-vis the conduct and manner of elections, to wit:

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 therefore, for public
information campaigns and forms among candidates in connection with the object of
holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press
Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases
underscores how difficult it is to draw a dividing line between permissible regulation of election
campaign activities and indefensible repression committed in the name of free and honest elections. In
the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of
expression even as it validated COMELEC regulation of campaigns through political advertisements.
The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly
limited and, in the opinion of some, too short, it becomes obvious that unduly restrictive regulations
may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem
inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial process, by its
very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk
impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the
essence to a candidate may have lapsed and irredeemable opportunities may have been lost.

27 | P a g e
When faced with border line situations where freedom to speak by a candidate or party and freedom to
know on the part of the electorate are invoked against actions intended for maintaining clean and free
elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic.
There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and
the right to know are unduly curtailed.

There were a variety of opinions expressed in the National Press Club v. Commission on Elections
(supra) case but all of us were unanimous that regulation of election activity has its limits. We examine
the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court,
through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test
of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts
one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the
flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the
constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents,
in National Press Club, we find the regulation in the present case of a different category. The
promotion of a substantial Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of

the Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City
Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not
endanger any substantial government interest. There is no clear public interest threatened by such
activity so as to justify the curtailment of the cherished citizen's right of free speech and expression.
Under the clear and present danger rule not only must the danger be patently clear and pressingly
present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth
or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where
the individual's freedom ends and the State's power begins. Choice on that border, now as
always delicate, is perhaps more so where the usual presumption supporting legislation is
balanced by the preferred place given in our scheme to the great, the indispensable
democratic freedom secured by the first Amendment . . . That priority gives these
liberties a sanctity and a sanction not permitting dubious intrusions and it is the character
of the right, not of the limitation, which determines what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public
interest, threatened not doubtfully or remotely, but by clear and present danger. The
rational connection between the remedy provided and the evil to be curbed, which in
other context might support legislation against attack on due process grounds, will not
suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would
restrain orderly discussion and persuasion, at appropriate time and place, must have clear
28 | P a g e
 support in public danger, actual or impending. Only the greatest abuses, endangering
permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323
US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of
the candidate or the political party. The regulation strikes at the freedom of an individual to express his
preference and, by displaying it on his car, to convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his own and not of anybody else. If, in
the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers
or radio and television stations and commentators or columnists as long as these are not correctly paid-
for advertisements or purchased opinions with less reason can we sanction the prohibition against a
sincere manifestation of support and a proclamation of belief by an individual person who pastes a
sticker or decal on his private property.

Second the questioned prohibition premised on the statute and as couched in the resolution is void
for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a
governmental purpose to control or prevent activities constitutionally subject to state regulations may
not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved. The breadth
of legislative abridgment must be viewed in the light of less drastic means for achieving
the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an

ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia,
without a license, pointing out that so broad an interference was unnecessary to
accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed
155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which
either banned or imposed prior restraints upon the distribution of handbills. In holding the
ordinances invalid, the court noted that where legislative abridgment of fundamental
personal rights and liberties is asserted, "the courts should be astute to examine the effect
of the challenged legislation. 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 so vital to the
maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310
US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct
remains subject to regulation for the protection of society," but pointed out that in each
case "the power to regulate must be so exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US
479 [1960]

29 | P a g e
The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2)
inches in width and fourteen (14) inches in length in any place, including mobile places whether public
or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals
and stickers should be posted is so broad that it encompasses even the citizen's private property, which
in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule
prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides
that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to
acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects
these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it
includes the right to acquire, use, and dispose of it. The Constitution protects these
essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790,
18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a
person's acquisitions without control or diminution save by the law of the land. 1
Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and
other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the
prohibition would not only deprive the owner who consents to such posting of the decals and stickers
the use of his property but more important, in the process, it would deprive the citizen of his right to
free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so

clearly vital to the preservation of a free society that, putting aside reasonable police and
health regulations of time and manner of distribution, it must be fully preserved. The
danger of distribution can so easily be controlled by traditional legal methods leaving to
each householder the full right to decide whether he will receive strangers as visitors, that
stringent prohibition can serve no purpose but that forbidden by the constitution, the
naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319
U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a
"liberty" interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of
election propaganda in any place, whether public or private, except in the common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front door or on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or
stickers in the privacy of one's living room or bedroom. This is delegation running riot. As stated by
Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446
30 | P a g e
[1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such
plentitude of power is susceptible of transfer."

Third the constitutional objective to give a rich candidate and a poor candidate equal opportunity to
inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII,
section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals
and stickers on cars and other private vehicles. Compared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal
significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities
for public service, . . . while under section 1, Article XIII thereof "The Congress shall give highest
priority to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other
moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen
becomes crucial in this kind of election propaganda not the financial resources of the candidate.
Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and
without the means to spread out the same number of decals and stickers is not as important as the right
of the owner to freely express his choice and exercise his right of free speech. The owner can even
prepare his own decals or stickers for posting on his personal property. To strike down this right and
enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private
except in the authorized areas designated by the COMELEC becomes censorship which cannot be
justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for
the validity of any public act whether proceeding from the highest official or the lowest
functionary, is a postulate of our system of government. That is to manifest fealty to the
rule of law, with priority accorded to that which occupies the topmost rung in the legal
hierarchy. The three departments of government in the discharge of the functions with
which it is entrusted have no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment of statutes must ever be on
guard lest the restrictions on its authority, either substantive or formal, be transcended.
The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In
its task of applying the law to the facts as found in deciding cases, the judiciary is called
upon to maintain inviolate what is decreed by the fundamental law. Even its power of
judicial review to pass upon the validity of the acts of the coordinate branches in the
course of adjudication is a logical. corollary of this basic principle that the Constitution is
paramount. It overrides any governmental measure that fails to live up to its mandates.
Thereby there is a recognition of its being the supreme law. (Mutuc v. Commission on
Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal
interpretation of the freedom to speak and the right to know. It is not alone the widest possible
31 | P a g e
dissemination of information on platforms and programs which concern us. Nor are we limiting
ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New
York Times v. Sullivan, supra) The big number of candidates and elective positions involved has
resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the
candidates running for Senator. The public does not know who are aspiring to be elected to public
office.

There are many candidates whose names alone evoke qualifications, platforms, programs and
ideologies which the voter may accept or reject. When a person attaches a sticker with such a
candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our
review of the validity of the challenged regulation includes its effects in today's particular
circumstances. We are constrained to rule against the COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No.
2347 of the Commission on Elections providing that "decals and stickers may be posted only in any of
the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and
VOID.

SO ORDERED.

Garcia vs. COMELEC, G.R. No. 170256, January 25, 2010

PERALTA, J.:

This is a petition for certiorari[1] alleging that the Commission on Elections (COMELEC) en
banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
Resolutions dated April 28, 2005 and October 5, 2005 in Election Offense Case No. 04-120. In the
Resolution dated April 28, 2005, the COMELEC en banc found probable cause that petitioner Alvin B.
Garcia committed an election offense and directed the Law Department of COMELEC to file the
appropriate Information against him for violation of Section 6 of Republic Act (R.A.) No. 9006,
otherwise known as the Fair Elections Act,[2] and Section 13 of COMELEC Resolution No. 6520, the
Implementing Rules and Regulations (IRR) of R.A. No. 9006. The Resolution dated October 5,
2005 denied petitioners motion for reconsideration.

The facts are as follows:

On May 6, 2004, private respondent Tomas R. Osmea, then mayoral candidate in the 2004 national
and local elections in Cebu City, filed an election offense case against his rival, petitioner Alvin B.
Garcia, for the publication of political advertisements that allegedly violated the thrice-a-week
publication requirement and failed to indicate the name and address of the party or candidate for whose
benefit the advertisements were published. He averred that the publication of the political advertisements

32 | P a g e
was in violation of Sections 4 and 6 of R.A. No. 9006[3] and Sections 11 and 13 of COMELEC Resolution
No. 6520.[4]
In his Complaint[5] dated May 6, 2004, private respondent alleged, thus:

For the period April 26, 2004 up to May 2, 2004, or for a period of one week,
respondent through his family-owned publishing company put up political advertisements,
which we can group into four basic categories, namely, "MAYOR SA KATAWHAN,"
"IT'S A NO-CONTEST," "NO TO TOM TAX OSMENA," and "Mayor Alvin Garcia"
advertisements.[6]

Private respondent averred that "MAYOR SA KATAWHAN was published four times, that is, on
April 27 and 29, 2004 and May 1 and 2, 2004, all one-half page in size, in the Sun Star tabloid. Moreover,
the "ITS A NO-CONTEST" political advertisement was printed daily, or seven times in Sun Star, all
one-half page in size, from April 26 to May 2, 2004. The "NO TO TOM TAX OSMEA advertisement
appeared thrice, or on April 28 and 29, 2004 and May 1, 2004, also one-half page in size, in the same
tabloid. The "Mayor Alvin Garcia advertisement was published once. Private respondent alleged that all
the political advertisements did not indicate the true and correct name and address of the party or
candidate for whose benefit the advertisements were published.

In his Answer,[7] petitioner denied private respondents allegations. He contended that the political
advertisements had been made not for a single candidate, but for the entire slate of his party, Kusug-KNP
Party, consisting of 20 local candidates, plus presidential and vice-presidential candidates Fernando Poe,
Jr. and Loren Legarda, respectively. Petitioner asserted that "22 candidates x 3 a week results to 66 times
a week publication for all the candidates" of the Kusug-KNP Party. Thus, the publication of the political
advertisements, may it be seven or 15 times, was way below the allowable limit of 66 times for the 22
political candidates of the Kusug-KNP Party. Consequently, the political advertisements in question had
not exceeded the legal limit provided by R.A. No. 9006, as implemented by COMELEC Resolution No.
6520.

Further, petitioner stated that the political advertisements in question reflected that they were really
campaigns for the benefit of the candidates of the Kusug-KNP Party, as in fact, they contained the pictures
and names of the partys political candidates. Hence, he contended that the political advertisements
substantially complied with the requirement provided by the Fair Elections Act that the advertisement
shall contain the true and correct name and address of the party or candidate for whose benefit the election
propaganda was printed.
In a Resolution dated November 8, 2004, the Office of the Regional Investigation and Prosecution
Committee (Office of the Regional Director, Region VII, Cebu City) recommended the dismissal of the
Complaint based on this finding:

33 | P a g e
 The respondent did not violate the thrice-a-week rule laid down by Sec. 6 of RA
9006 as implemented by Sec. 13 of Comelec Resolution 6520. As correctly pointed out by
respondent, the said political advertisement is not for the benefit or published for the
respondent alone, but for the whole Kusug-KNP Party as can be gleaned from said
advertisements, thus, the whole party with twenty local candidates and the Kusog Party
and its alliance with Koalisyong Nagkakaisang Pilipino (KNP) is entitled to as much as 66
times a week for each publication. The very purpose of the law is to provide candidates
wide latitude in informing the electorate regarding their platforms and qualifications during
the campaign period.
The same can be said on the alleged violation of Sec. 4 of RA 9006 as implemented
by Sec. 11 of Comelec Resolution 6520. Although respondent's political advertisement did
not literally contain the requirement of indicating the true and correct name and address for
whose benefit the election propaganda was published, this requirement is substantially met
by the respondent because it can be glean[ed] [from the] said ads for whose benefit the
same was made as shown by the pictures and names of the candidates and who paid for it.
A literal implementation of the law should not be required if the same can be met
substantially and the purpose of the law is achieve[d] and that is equal access to media is
given to candidates to make known their qualifications and stand on public issues.[8]

In a Resolution dated April 28, 2005, the COMELEC en banc disagreed with the recommendation
of the investigating officer, thus:

We disagree. RA 9006 provides to wit:

Sec. 6. Equal Access to Media Time and Space. - All registered parties
and bona fide candidates shall have equal access to media time and space.
The following guidelines may be amplified on by the COMELEC:

6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet
and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or
other publications, during the campaign period.

This is amplified by Comelec Resolution 6520, thus:

SECTION 13. Requirements and/or Limitations on the Use of

Election Propaganda through Mass Media. - All registered political parties,
party-list groups, organizations, and/or coalitions thereof, and bona
fide candidates shall have equal access to media time and space for their
election propaganda during the campaign period subject to the following
requirements and/or limitations:
xxxx
2. Printed or Published Election Propaganda

The maximum size of print advertisements for each candidate,

whether for a national or local elective position, or registered political party,
party-list group, organization, and/or coalition thereof, shall be, as follows:
34 | P a g e
 a. One fourth (1/4) page - in broadsheets; and
b. One half (1/2) page - in tabloids

Said print advertisements, whether procured by purchase, or given

free of charge, shall be published thrice a week per newspaper, magazine or
other publications during the campaign period. (emphasis supplied)

Insofar as the political propaganda, its a no-contest, is concerned, respondent does

not deny that the same was published in Sun Star for seven (7) consecutive times from 26
April 2004 to 02 May 2004 or for a period of one week, straight. An inspection of the said
advertisement reveals that it refers only to respondent; there is no mention of his political
party or party-mates, making it clear that it was his advertisement alone. The computation
thus made by respondent and so adopted by the investigating officer, assuming this to be
true and valid, would not and cannot apply in this instance. The provisions of law violated
need no further interpretation as they are very plain and unambiguous.

That other candidates are claimed to have committed the same violation does not
excuse herein respondent nor does it remove from this Commission the authority and power
to prosecute the same. In fact, it compels Us to be even more vigorous and relentless in
pursuing Our duties. In this regard, there shall be no sacred cows.[9]

The dispositive portion of the Resolution reads:

CONSIDERING that there exists PROBABLE CAUSE, the Law Department is

hereby DIRECTED to file the appropriate information against respondent Alvin B. Garcia
for violation of Section 6 of RA 9006, and Section 13 of COMELEC Resolution No. 6520,
in relation to Section 264 of the Omnibus Election Code, as amended.[10]

Petitioner filed a Motion for Reconsideration[11] and, thereafter, a Supplemental Motion for
Reconsideration[12] of the Resolution, contending that there was lack of probable cause to hold him liable
for an election offense in violation of R.A. No. 9006 and its IRR, because he was neither the author of
the questioned advertisement nor the one who caused its publication. He stated that Orlando P. Carvajal,
the General Manager of Sun Star Publishing, Inc., attested in an Affidavit dated May 23, 2005 that an
organization named Friends of Alvin Garcia caused the publication of the said advertisement.

Petitioner contended that since he did not cause the publication of the advertisement in question,
and absent any competent proof against him, there was no probable cause warranting the filing of an
Information against him for violation of R.A. No. 9006, as implemented by COMELEC Resolution No.
6520.

In a Resolution[13] dated October 5, 2005, the COMELEC en banc denied the motion for
reconsideration for lack of merit.
35 | P a g e
 On October 13, 2006, the COMELEC Law Department directed Atty. Manuel T. Advincula,
Acting Regional Election Director of Region VII, to file the Information entitled People of
the Philippines v. Alvin B. Garcia with the proper Regional Trial Court (RTC) of Cebu.

Petitioner filed an Urgent Motion to Withhold Issuance of Warrant of Arrest and for Judicial
Determination of Probable Cause with the RTC of Cebu City, Branch 12, on the following grounds:

1. The filing of the information by the COMELEC is premature

considering that there is a pending petition for certiorari before the Supreme Court
questioning the resolution of the COMELEC over the subject matter; and

2. There is lack of probable cause to subject the accused to a criminal

prosecution.[14]

On December 21, 2006, the RTC OF Cebu City, Branch 12, issued an Order the dispositive
portion of which reads:

IN VIEW OF ALL THE FOREGOING, the determination of probable cause is

hereby deferred until after resolution of the petition for certiorari pending with the
Supreme Court.Accordingly, the issuance of a warrant of arrest is held in abeyance.[15]

Meantime, on November 18, 2005, petitioner filed this petition, raising the following issues:

I
THE RESPONDENT COMELEC COMMITTED ERROR AMOUNTING TO
GRAVE ABUSE OF DISCRETION IN RULING THAT THERE EXISTS A PROBABLE
CAUSE TO SUBJECT THE PETITIONER TO A CRIMINAL PROSECUTION AS THE
POLITICAL ADVERTISEMENT IN QUESTION DID NOT EXCEED THE ALLOWED
FREQUENCY OF PUBLICATION.

II
THE RESPONDENT COMELEC COMMITTED ERROR AMOUNTING TO
GRAVE ABUSE OF DISCRETION IN RULING THAT THERE EXISTS A PROBABLE
CAUSE TO SUBJECT THE PETITIONER TO A CRIMINAL PROSECUTION
DESPITE THE PRESENCE OF EVIDENCE THAT THE PETITIONER DID NOT
CAUSE THE PUBLICATION OF THE POLITICAL ADVERTISEMENT IN
QUESTION.[16]

Before this Court, petitioner reiterates that the ITS NO CONTEST political advertisement was
attributable not only to him but to the complete line-up of candidates of Kusug-KNP Party for local
elective positions, numbering 20 candidates. The partys alliance with the KNP, a national party that

36 | P a g e
carried the late Fernando Poe, Jr. for President and former Senator Loren Legarda for Vice-president,
brought the total number of candidates advertised in the political advertisement to 22, excluding the
senatorial line-up.

Petitioner contends that 22 candidates multiplied by three publications per week equals an
allowable publication of 66 times a week for all candidates of the Kusug-KNP Party. Petitioner asserts
that the Special Regional Investigation and Prosecution Committee, therefore, did not err in
recommending the dismissal of the Complaint, as the pertinent advertisement did not violate the thrice-
a-week rule laid down by Section 6 of R.A. No. 9006, as implemented by Section 13 of COMELEC
Resolution No. 6520.

Further, petitioner argues that there is no probable cause that he violated Section 11 of COMELEC
Resolution No. 6520, because he did not author or cause the publication of the advertisement in
question. The affidavit executed by the General Manager of Sun Star Publishing, Inc. stated that the
organization named Friends of Alvin Garcia paid for the ITS A NO-CONTEST political advertisement
for the period April 26, 2004 to May 2, 2004.

Petitioner admits that he and his family own stocks in Sun Star Publishing, Inc. He claims,
however, that Sun Star is independently operated by its News, Editorial and Marketing Departments,
and Sun Star Daily prides itself with catering to no other interest but to that of the general public, and is
not beholden to the corporations stockholders and their relatives.

Petitioner asserts that probable cause presupposes the introduction of competent proof that the
party against whom it is sought has performed particular acts or committed specific omissions, violating
a given provision of our criminal laws.

According to petitioner, private respondent did not offer any competent proof that he (petitioner)
was the author of the said political advertisement or caused the publication of the same, but offered
merely the publication of the advertisement in question.

Petitioner submits that having established that he was neither the author of the political
advertisement in question nor the one who caused its publication, there is no probable cause warranting
the filing of the Information against him for violation of R.A. No. 2006, as implemented by COMELEC
Resolution No. 6520. Thus, the COMELEC en banc committed grave abuse of discretion amounting to
lack of jurisdiction in issuing the Resolutions dated April 28, 2005 and October 5, 2005.

The Court is not persuaded.

Paragraph 6, Section 2, Article IX of the Constitution empowers the COMELEC to investigate

and, where appropriate, prosecute cases for violation of election laws, including acts or omissions
constituting election frauds, offenses and malpractices. This prosecutorial power of the COMELEC is
reflected in Section 265 of Batas Pambansa Bilang 881,[17] otherwise known as the Omnibus Election
Code.
37 | P a g e
 It is well settled that the finding of probable cause in the prosecution of election offenses rests in
the COMELEC's sound discretion.[18]

Baytan v. Commission on Elections[19] defines probable cause, thus:

x x x By definition, probable cause is

x x x a reasonable ground of presumption that a matter is, or may be, well founded
x x x such a state of facts in the mind of the prosecutor as would lead a person of ordinary
caution and prudence to believe or entertain an honest or strong suspicion that a thing is
so. The term does not mean actual or positive cause nor does it import absolute certainty. It
is merely based on opinion and reasonable belief. Thus, a finding of probable cause does
not require an inquiry into whether there is sufficient evidence to procure a conviction. It
is enough that it is believed that the act or omission complained of constitutes the offense
charged. Precisely, there is a trial for the reception of evidence of the prosecution in support
of the charge.

Generally, the Court will not interfere with the finding of probable cause by the COMELEC absent
a clear showing of grave abuse of discretion.[20] This principle emanates from the COMELEC's exclusive
power to conduct preliminary investigation of all election offenses punishable under the election laws
and to prosecute the same, except as may otherwise be provided by law. [21]

Section 4 of R.A. No. 9006 provides for the requirements for published or printed election
propaganda, thus:

Sec. 4. Requirements for Published or Printed and Broadcast Election

Propaganda 4.1. Any newspaper x x x or any published or printed political matter and
any broadcast of election propaganda by television or radio for or against a candidate or
group of candidates to any public office shall bear and be identified by the reasonably
legible or audible words political advertisement paid for, followed by the true and correct
name and address of the candidate or party for whose benefit the election propaganda was
printed or aired.
xxxx

4.3. Print, broadcast or outdoor advertisements donated to the candidate or

political party shall not be printed, published, broadcast or exhibited without the
written acceptance by the said candidate or political party. Such written acceptance
shall be attached to the advertising contract and shall be submitted to the
COMELEC as provided in Subsection 6.3 hereof. (Emphasis supplied.)

Paragraphs 4.1 and 4.3, Section 4 of R.A. No. 9006 are reflected in Section 13 (3) and Section 14
of COMELEC Resolution No. 6520.[22]
38 | P a g e
 To emphasize, Section 4 of R.A. No. 9006 requires that print advertisements donated to a
candidate shall not be published without the written acceptance of the said candidate, which written
acceptance shall be attached to the advertising contract and submitted to the COMELEC.

The requirement for a written acceptance by a candidate of donated advertisements is a safeguard

provided by law against the danger of publishing or broadcasting election propaganda beyond the
required frequency, size and other limitations imposed by law without the candidates express agreement,
since the violation of such requirements results in the prosecution of the candidate for an election offense
punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code.[23] Under
Section 264 of the Omnibus Election Code, a person found guilty of an election offense shall be punished
with imprisonment of not less than one year but not more than six years and shall not be subject to
probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office
and deprivation of the right of suffrage.

In this case, the COMELEC did not question petitioners averment that the advertisement in
question was paid for by the organization named Friends of Alvin Garcia. The advertisement may be
considered as a donation to petitioner under Section 4 of R.A. No. 9006 and its IRR. Paragraph 4.3,
Section 4 of R.A. No. 9006 explicitly requires that print x x x advertisements donated to the candidate or
political party shall not be printed, published x x x without the written acceptance by the said
candidate.[24] Since the advertisement in question was published by the Sun Star, there arises a
presumption that there was written acceptance by petitioner of the advertisement paid for or donated by
his friends in the absence of evidence to the contrary. Under the Rules on Evidence, it is presumed that
the law has been obeyed, and that private transactions have been fair and regular.[25]

Following the general rule, the Court will not interfere with the finding of probable cause by the
COMELEC, absent a clear showing of grave abuse of discretion that must be so patent and gross as to
amount to an evasion or refusal to perform a duty enjoined by law or to act in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[26]

The records show that the COMELEC has filed an Information charging petitioner with violation
of Section 6 of R.A. No. 9006 and its IRR with the RTC of Cebu City, Branch 12, which has thereby
acquired jurisdiction over the case. Consequently, all the subsequent dispositions of the said case must
be subject to the approval of the court. Hence, the case must be allowed to take its due course.[27]

WHEREFORE, the petition for certiorari is hereby DISMISSED. The Resolutions of the
COMELEC en banc dated April 28, 2005 and October 5, 2005 are AFFIRMED.

No costs.

SO ORDERED.

39 | P a g e
PHILIPPINE PRESS INSTITUTE, INC vs. COMELEC, G.R. No. L-119694 May 22, 1995

FELICIANO, J.:

The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the constitutional validity of
Resolution No. 2772 issued by respondent Commission on Elections ("Comelec") and its
corresponding Comelec directive dated 22 March 1995, through a Petition for Certiorari and
Prohibition. Petitioner PPI is a non-stock, non-profit organization of newspaper and magazine
publishers.

On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:

xxx xxx xxx

Sec. 2. Comelec Space. The Commission shall procure free print space of not less
than one half (1/2) page in at least one newspaper of general circulation in every
province or city for use as "Comelec Space" from March 6, 1995 in the case of
candidates for senator and from March 21, 1995 until May 12, 1995. In the absence of
said newspaper, "Comelec Space" shall be obtained from any magazine or periodical of
said province or city.

Sec. 3. Uses of Comelec Space. "Comelec Space" shall be allocated by the

Commission, free of charge, among all candidates within the area in which the
newspaper, magazine or periodical is circulated to enable the candidates to make known
their qualifications, their stand on public issues and their platforms and programs of
government.

"Comelec Space" shall also be used by the Commission for dissemination of vital election
information.

Sec. 4. Allocation of Comelec Space. (a) "Comelec Space" shall also be available to
all candidates during the periods stated in Section 2 hereof. Its allocation shall be equal
and impartial among all candidates for the same office. All candidates concerned shall be
furnished a copy of the allocation of "Comelec Space" for their information, guidance
and compliance.

(b) Any candidate desiring to avail himself of "Comelec Space" from newspapers or
publications based in the Metropolitan Manila Area shall submit an application therefor,
in writing, to the Committee on Mass Media of the Commission. Any candidate desiring
to avail himself of "Comelec Space" in newspapers or publications based in the provinces
shall submit his application therefor, in writing, to the Provincial Election Supervisor
concerned. Applications for availment of "Comelec Space" maybe filed at any time from
the date of effectivity of this Resolution.

(c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate
available "Comelec Space" among the candidates concerned by lottery of which said
40 | P a g e
 candidates shall be notified in advance, in writing, to be present personally or by
representative to witness the lottery at the date, time and place specified in the notice.
Any party objecting to the result of the lottery may appeal to the Commission.

(d) The candidates concerned shall be notified by the Committee on Mass Media or the
Provincial Election Supervisor, as the case maybe, sufficiently in advance and in writing
of the date of issue and the newspaper or publication allocated to him, and the time
within which he must submit the written material for publication in the "Comelec Space".

xxx xxx xxx

Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. No

newspaper or publication shall allow to be printed or published in the news, opinion,
features, or other sections of the newspaper or publication accounts or comments which
manifestly favor or oppose any candidate or political party by unduly or repeatedly
referring to or including therein said candidate or political party. However, unless the
facts and circumstances clearly indicate otherwise, the Commission will respect the
determination by the publisher and/or editors of the newspapers or publications that the
accounts or views published are significant, newsworthy and of public interest.
(Emphasis supplied)

Apparently in implementation of this Resolution, Comelec through Commissioner Regalado E.

Maambong sent identical letters, dated 22 March 1995, to various publishers of newspapers like
the Business World, the Philippine Star, the Malaya and the Philippine Times Journal, all members of
PPI. These letters read as follows:

This is to advise you that pursuant to Resolution No. 2772 of the Commission on
Elections, you are directed to provide free print space of not less than one half (1/2)
page for use as "Comelec Space" or similar to the print support which you have extended
during the May 11, 1992 synchronized elections which was 2 full pages for each political
party fielding senatorial candidates, from March 6, 1995 to May 6, 1995, to make known
their qualifications, their stand on public issues and their platforms and programs of
government.

We shall be informing the political parties and candidates to submit directly to

you their pictures, biographical data, stand on key public issues and platforms of
government either as raw data or in the form of positives or camera-ready materials.

Please be reminded that the political parties/candidates may be accommodated in your

publication any day upon receipt of their materials until May 6, 1995 which is the last
day for campaigning.

We trust you to extend your full support and cooperation in this regard. (Emphasis
supplied)

In this Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary Restraining
Order, PPI asks us to declare Comelec Resolution No. 2772 unconstitutional and void on the ground
that it violates the prohibition imposed by the Constitution upon the government, and any of its
41 | P a g e
agencies, against the taking of private property for public use without just compensation. Petitioner
also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free
"Comelec Space" and at the same time process raw data to make it camera-ready, constitute
impositions of involuntary servitude, contrary to the provisions of Section 18 (2), Article III of the
1987 Constitution. Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is violative of
the constitutionally guaranteed freedom of speech, of the press and of expression.1

On 20 April 1995, this Court issued a Temporary Restraining Order enjoining Comelec from enforcing
and implementing Section 2 of Resolution No. 2772, as well as the Comelec directives addressed to
various print media enterprises all dated 22 March 1995. The Court also required the respondent to file
a Comment on the Petition.

The Office of the Solicitor General filed its Comment on behalf of respondent Comelec alleging that
Comelec Resolution No. 2772 does not impose upon the publishers any obligation to provide free print
space in the newspapers as it does not provide any criminal or administrative sanction for non-
compliance with that Resolution. According to the Solicitor General, the questioned Resolution merely
established guidelines to be followed in connection with the procurement of "Comelec space," the
procedure for and mode of allocation of such space to candidates and the conditions or requirements
for the candidate's utilization of the "Comelec space" procured. At the same time, however, the
Solicitor General argues that even if the questioned Resolution and its implementing letter directives
are viewed as mandatory, the same would nevertheless be valid as an exercise of the police power of
the State. The Solicitor General also maintains that Section 8 of Resolution No. 2772 is a permissible
exercise of the power of supervision or regulation of the Comelec over the communication and
information operations of print media enterprises during the election period to safeguard and ensure a
fair, impartial and credible election.2

At the oral hearing of this case held on 28 April 1995, respondent Comelec through its Chairman, Hon.
Bernardo Pardo, in response to inquiries from the Chief Justice and other Members of the Court, stated
that Resolution No. 2772, particularly Section 2 thereof and the 22 March 1995 letters dispatched to
various members of petitioner PPI, were not intended to compel those members to supply Comelec
with free print space. Chairman Pardo represented to the Court that Resolution and the related letter-
directives were merely designed to solicit from the publishers the same free print space which many
publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992
elections. Indeed, the Chairman stated that the Comelec would, that very afternoon, meet and adopt an
appropriate amending or clarifying resolution, a certified true copy of which would forthwith be filed
with the Court.

On 5 May 1995, the Court received from the Office of the Solicitor General a manifestation which
attached a copy of Comelec Resolution No. 2772-A dated 4 May 1995. The operative portion of this
Resolution follows:

NOW THEREFORE, pursuant to the powers vested in it by the Constitution, the

Omnibus Election Code, Republic Acts No. 6646 and 7166 and other election laws, the
Commission on Elections RESOLVED to clarify Sections 2 and 8 of Res. No. 2772 as
follows:

1. Section 2 of Res. No. 2772 shall not be construed to mean

as requiring publishers of the different mass media print
42 | P a g e
 publications to provide print space under pain of prosecution,
whether administrative, civil or criminal, there being no
sanction or penalty for violation of said Section provided for
either in said Resolution or in Section 90 of Batas Pambansa
Blg. 881, otherwise known as the Omnibus Election Code, on
the grant of "Comelec space."

2. Section 8 of Res. No. 2772 shall not be construed to mean

as constituting prior restraint on the part of publishers with
respect to the printing or publication of materials in the news,
opinion, features or other sections of their respective
publications or other accounts or comments, it being clear
from the last sentence of said Section 8 that the Commission
shall, "unless the facts and circumstances clearly indicate
otherwise . . . respect the determination by the publisher
and/or editors of the newspapers or publications that the
accounts or views published are significant, newsworthy and
of public interest."

This Resolution shall take effect upon approval. (Emphasis in the original)

While, at this point, the Court could perhaps simply dismiss the Petition for Certiorari and Prohibition
as having become moot and academic, we consider it not inappropriate to pass upon the first
constitutional issue raised in this case. Our hope is to put this issue to rest and prevent its resurrection.

Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 of Resolution No.
2772-A did not try to redraft Section 2; accordingly, Section 2 of Resolution No. 2772 persists in its
original form. Thus, we must point out that, as presently worded, and in particular as interpreted and
applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers, Section 2
of Resolution No. 2772 is clearly susceptible of the reading that petitioner PPI has given it. That
Resolution No. 2772 does not, in express terms, threaten publishers who would disregard it or its
implementing letters with some criminal or other sanction, does not by itself demonstrate that the
Comelec's original intention was simply to solicit or request voluntary donations of print space from
publishers. A written communication officially directing a print media company to supply free print
space, dispatched by a government (here a constitutional) agency and signed by a member of the
Commission presumably legally authorized to do so, is bound to produce a coercive effect upon the
company so addressed. That the agency may not be legally authorized to impose, or cause the
imposition of, criminal or other sanctions for disregard of such directions, only aggravates the
constitutional difficulties inhearing in the present situation. The enactment or addition of such
sanctions by the legislative authority itself would be open to serious constitutional objection.

To compel print media companies to donate "Comelec-space" of the dimensions specified in Section 2
of Resolution No. 2772 (not less than one-half page), amounts to "taking" of private personal property
for public use or purposes. Section 2 failed to specify the intended frequency of such compulsory
"donation:" only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995? or
everyday or once a week? or as often as Comelec may direct during the same period? The extent of the
taking or deprivation is not insubstantial; this is not a case of a de minimistemporary limitation or
restraint upon the use of private property. The monetary value of the compulsory "donation," measured
43 | P a g e
by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban
areas, may be very substantial indeed.

The taking of print space here sought to be effected may first be appraised under the rubric of
expropriation of private personal property for public use. The threshold requisites for a lawful taking of
private property for public use need to be examined here: one is the necessity for the taking; another is
the legal authority to effect the taking. The element of necessity for the taking has not been shown by
respondent Comelec. It has not been suggested that the members of PPI are unwilling to sell print space
at their normal rates to Comelec for election purposes. Indeed, the unwillingness or reluctance of
Comelec to buy print space lies at the heart of the problem. 3 Similarly, it has not been suggested, let
alone demonstrated, that Comelec has been granted the power of eminent domain either by the
Constitution or by the legislative authority. A reasonable relationship between that power and the
enforcement and administration of election laws by Comelec must be shown; it is not casually to be
assumed.

That the taking is designed to subserve "public use" is not contested by petitioner PPI. We note only
that, under Section 3 of Resolution No. 2772, the free "Comelec space" sought by the respondent
Commission would be used not only for informing the public about the identities, qualifications and
programs of government of candidates for elective office but also for "dissemination of vital election
information" (including, presumably, circulars, regulations, notices, directives, etc. issued by
Comelec). It seems to the Court a matter of judicial notice that government offices and agencies
(including the Supreme Court) simply purchase print space, in the ordinary course of events, when their
rules and regulations, circulars, notices and so forth need officially to be brought to the attention of the
general public.

The taking of private property for public use is, of course, authorized by the Constitution, but not
without payment of "just compensation" (Article III, Section 9). And apparently the necessity of paying
compensation for "Comelec space" is precisely what is sought to be avoided by respondent
Commission, whether Section 2 of Resolution No. 2772 is read as petitioner PPI reads it, as an
assertion of authority to require newspaper publishers to "donate" free print space for Comelec
purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free print space, as Section
1 of Resolution No. 2772-A attempts to suggest. There is nothing at all to prevent newspaper and
magazine publishers from voluntarily giving free print space to Comelec for the purposes contemplated
in Resolution No. 2772. Section 2 of Resolution No. 2772 does not, however, provide a constitutional
basis for compelling publishers, against their will, in the kind of factual context here present, to provide
free print space for Comelec purposes. Section 2 does not constitute a valid exercise of the power of
eminent domain.

We would note that the ruling here laid down by the Court is entirely in line with the theory of
democratic representative government. The economic costs of informing the general public about the
qualifications and programs of those seeking elective office are most appropriately distributed as
widely as possible throughout our society by the utilization of public funds, especially funds raised by
taxation, rather than cast solely on one small sector of society, i.e., print media enterprises. The benefits
which flow from a heightened level of information on and the awareness of the electoral process are
commonly thought to be community-wide; the burdens should be allocated on the same basis.

As earlier noted, the Solicitor General also contended that Section 2 of Resolution No. 2772, even if
read as compelling publishers to "donate" "Comelec space, " may be sustained as a valid exercise of the
44 | P a g e
police power of the state. This argument was, however, made too casually to require prolonged
consideration on our part. Firstly, there was no effort (and apparently no inclination on the part of
Comelec) to show that the police power essentially a power of legislation has been
constitutionally delegated to respondent Commission.4 Secondly, while private property may indeed be
validly taken in the legitimate exercise of the police power of the state, there was no attempt to show
compliance in the instant case with the requisites of a lawful taking under the police power. 5

Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a showing of
existence of a national emergency or other imperious public necessity, indiscriminately and without
regard to the individual business condition of particular newspapers or magazines located in differing
parts of the country, to take private property of newspaper or magazine publishers. No attempt was
made to demonstrate that a real and palpable or urgent necessity for the taking of print space
confronted the Comelec and that Section 2 of Resolution No. 2772 was itself the only reasonable and
calibrated response to such necessity available to the Comelec. Section 2 does not constitute a valid
exercise of the police power of the State.

We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full again:

Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. No

newspaper or publication shall allow to be printed or published in the news, opinion,
features, or other sections of the newspaper or publication accounts or comments which
manifestly favor or oppose any candidate or political party by unduly or repeatedly
referring to or including therein said candidate or political party. However, unless the
facts and circumstances clearly indicate otherwise, the Commission will respect the
determination by the publisher and/or editors of the newspapers or publications that the
accounts or views published are significant, newsworthy and of public interest.

It is not easy to understand why Section 8 was included at all in Resolution No. 2772. In any case,
Section 8 should be viewed in the context of our decision in National Press Club v. Commission on
Elections. 6 There the Court sustained the constitutionality of Section 11 (b) of R.A. No. 6646, known
as the Electoral Reforms Law of 1987, which prohibits the sale or donation of print space and airtime
for campaign or other political purposes, except to the Comelec. In doing so, the Court carefully
distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b),
from (b) the reporting of news, commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, commentators or columnists which fall outside the scope of Section 11 (b) and
which are protected by the constitutional guarantees of freedom of speech and of the press:

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, of print space and air time for
campaign or other political purposes. Section 11 (b) does not purport in any way to
restrict the reporting by newspapers or radio or television stations of news or 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 broadcaster 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
45 | P a g e
 report or commentary or 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
of Sanidad v. Commission on Elections. . . . 7 (Citations omitted; emphasis supplied)

Section 8 of Resolution No. 2772 appears to represent the effort of the Comelec to establish a guideline
for implementation of the above-quoted distinction and doctrine in National Press Club an effort not
blessed with evident success. Section 2 of Resolution No. 2772-A while possibly helpful, does not add
substantially to the utility of Section 8 of Resolution No. 2772. The distinction between paid political
advertisements on the one hand and news reports, commentaries and expressions of belief or opinion
by reporters, broadcasters, editors, etc. on the other hand, can realistically be given operative meaning
only in actual cases or controversies, on a case-to-case basis, in terms of very specific sets of facts.

At all events, the Court is bound to note that PPI has failed to allege any specific affirmative action on
the part of Comelec designed to enforce or implement Section 8. PPI has not claimed that it or any of
its members has sustained actual or imminent injury by reason of Comelec action under Section 8. Put
a little differently, the Court considers that the precise constitutional issue here sought to be raised
whether or not Section 8 of Resolution No. 2772 constitutes a permissible exercise of the Comelec's
power under Article IX, Section 4 of the Constitution to

supervise or regulate the enjoyment or utilization of all franchise or permits for the
operation of media of communication or information [for the purpose of ensuring]
equal opportunity, time and space, and the right of reply, including reasonable, equal
rates therefore, for public information campaigns and forums among candidates in
connection with the objective of holding free, orderly honest, peaceful and credible
elections

is not ripe for judicial review for lack of an actual case or controversy involving, as the very lis
mota thereof, the constitutionality of Section 8.

Summarizing our conclusions:

1. Section 2 of Resolution No. 2772, in its present form and as interpreted by Comelec in its 22 March
1995 letter directives, purports to require print media enterprises to "donate" free print space to
Comelec. As such, Section 2 suffers from a fatal constitutional vice and must be set aside and nullified.

2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition for Certiorari and
Prohibition must be dismissed for lack of an actual, justiciable case or controversy.

WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition is GRANTED in part
and Section 2 of Resolution No. 2772 in its present form and the related letter-directives dated 22
March 1995 are hereby SET ASIDE as null and void, and the Temporary Restraining Order is hereby

46 | P a g e
MADE PERMANENT. The Petition is DISMISSED in part, to the extent it relates to Section 8 of
Resolution No. 2772. No pronouncement as to costs.

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC.

and GMA NETWORK, INC. vs. COMELEC, G.R. No. 132922. April 21, 1998

MENDOZA, J.:

In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998,[1] we upheld the validity of
11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for political ads,
except to the Commission on Elections under 90, of B.P. No. 881, the Omnibus Election Code, with
respect to print media, and 92, with respect to broadcast media. In the present case, we consider the
validity of 92 of B.P. Blg. No. 881 against claims that the requirement that radio and television time be
given free takes property without due process of law; that it violates the eminent domain clause of the
Constitution which provides for the payment of just compensation; that it denies broadcast media the
equal protection of the laws; and that, in any event, it violates the terms of the franchise of petitioner
GMA Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization
of lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers, and
registered voters. The other petitioner, GMA Network, Inc., operates radio and television broadcasting
stations throughout the Philippines under a franchise granted by Congress.
Petitioners challenge the validity of 92 on the ground (1) that it takes property without due process
of law and without just compensation; (2) that it denies radio and television broadcast companies the
equal protection of the laws; and (3) that it is in excess of the power given to the COMELEC to supervise
or regulate the operation of media of communication or information during the period of election.

The Question of Standing

At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an
interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers, and
registered voters.
In those cases[2] in which citizens were authorized to sue, this Court upheld their standing in view of
the transcendental importance of the constitutional question raised which justified the granting of
relief. In contrast, in the case at bar, as will presently be shown, petitioners substantive claim is without
merit. To the extent, therefore, that a partys standing is determined by the substantive merit of his case
or a preliminary estimate thereof, petitioner TELEBAP must be held to be without standing. Indeed, a
citizen will be allowed to raise a constitutional question only when he can show that he has personally
suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government;
the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable

47 | P a g e
action.[3] Members of petitioner have not shown that they have suffered harm as a result of the operation
of 92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this case does
not concern their right of suffrage. Their interest in 92 of B.P. Blg. 881 should be precisely in upholding
its validity.
Much less do they have an interest as taxpayers since this case does not involve the exercise by
Congress of its taxing or spending power.[4] A party suing as a taxpayer must specifically show that he
has a sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will
sustain a direct injury as a result of the enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown that the
party suing has some substantial relation to the third party, or that the third party cannot assert his
constitutional right, or that the right of the third party will be diluted unless the party in court is allowed
to espouse the third partys constitutional claim. None of these circumstances is here present. The mere
fact that TELEBAP is composed of lawyers in the broadcast industry does not entitle them to bring this
suit in their name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge. Petitioner operates radio and
television broadcast stations in the Philippines affected by the enforcement of 92 of B.P. Blg. 881
requiring radio and television broadcast companies to provide free air time to the COMELEC for the use
of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC
Time in connection with the 1992 presidential election and the 1995 senatorial election and that it stands
to suffer even more should it be required to do so again this year. Petitioners allegation that it will suffer
losses again because it is required to provide free air time is sufficient to give it standing to question the
validity of 92.[5]

Airing of COMELEC Time, a

Reasonable Condition for
Grant of Petitioners
Franchise

As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90 and 92 of
B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the opportunity of
candidates in an election in regard to the use of mass media for political campaigns. These statutory
provisions state in relevant parts:

R.A. No. 6646

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:

....

48 | P a g e
(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Section 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.

B.P. Blg. 881, (Omnibus Election Code)

SEC. 90. Comelec space. - The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as Comelec Space wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated. (Sec. 45,1978 EC).

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. (Sec. 46, 1978 EC)

Thus, the law prohibits mass media from selling or donating print space and air time to the candidates
and requires the COMELEC instead to procure print space and air time for allocation to the candidates. It
will be noted that while 90 of B.P. Blg. 881 requires the COMELEC to procure print space which, as we
have held, should be paid for, 92 states that air time shall be procured by the COMELEC free of charge.
Petitioners contend that 92 of BP Blg. 881 violates the due process clause[6] and the eminent domain
provision[7] of the Constitution by taking air time from radio and television broadcasting stations without
payment of just compensation. Petitioners claim that the primary source of revenue of the radio and
television stations is the sale of air time to advertisers and that to require these stations to provide free
air time is to authorize a taking which is not a de minimis temporary limitation or restraint upon the use
of private property. According to petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in
providing free air time of one (1) hour every morning from Mondays to Fridays and one (1) hour on
Tuesdays and Thursdays from 7:00 to 8:00 p.m. (prime time) and, in this years elections, it stands to lose
P58,980,850.00 in view of COMELECs requirement that radio and television stations provide at least 30
minutes of prime time daily for the COMELEC Time.[8]
Petitioners argument is without merit. All broadcasting, whether by radio or by television stations,
is licensed by the government. Airwave frequencies have to be allocated as there are more individuals
who want to broadcast than there are frequencies to assign.[9] A franchise is thus a privilege subject,
among other things, to amendment by Congress in accordance with the constitutional provision that any
such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress
when the common good so requires.[10]
The idea that broadcast stations may be required to provide COMELEC Time free of charge is not
new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:

49 | P a g e
SEC. 49. Regulation of election propaganda through mass media. - (a) The franchises of all radio
broadcasting and television stations are hereby amended so as to require each such station to furnish
free of charge, upon request of the Commission [on Elections], during the period of sixty days before
the election not more than fifteen minutes of prime time once a week which shall be known as Comelec
Time and which shall be used exclusively by the Commission to disseminate vital election
information. Said Comelec Time shall be considered as part of the public service time said stations are
required to furnish the Government for the dissemination of public information and education under
their respective franchises or permits.

This provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296),
which provided:

SEC. 46. COMELEC Time. - The Commission [on Elections] 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 said radio and television stations. For this purpose, the franchises of all
radio broadcasting and television stations are hereby amended so as to require such stations to furnish
the Commission radio or television time, free of charge, during the period of the campaign, at least
once but not oftener than every other day.

Substantially the same provision is now embodied in 92 of B.P. Blg. 881.

Indeed, provisions for COMELEC Time have been made by amendment of the franchises of radio
and television broadcast stations and, until the present case was brought, such provisions had not been
thought of as taking property without just compensation. Art. XII, 11 of the Constitution authorizes the
amendment of franchises for the common good. What better measure can be conceived for the common
good than one for free air time for the benefit not only of candidates but even more of the public,
particularly the voters, so that they will be fully informed of the issues in an election? [I]t is the right of
the viewers and listeners, not the right of the broadcasters, which is paramount.[11]
Nor indeed can there be any constitutional objection to the requirement that broadcast stations give
free air time. Even in the United States, there are responsible scholars who believe that government
controls on broadcast media can constitutionally be instituted to ensure diversity of views and attention
to public affairs to further the system of free expression. For this purpose, broadcast stations may be
required to give free air time to candidates in an election.[12] Thus, Professor Cass R. Sunstein of the
University of Chicago Law School, in urging reforms in regulations affecting the broadcast industry,
writes:

Elections. We could do a lot to improve coverage of electoral campaigns. Most important, government
should ensure free media time for candidates. Almost all European nations make such provision; the
United States does not. Perhaps government should pay for such time on its own. Perhaps broadcasters
should have to offer it as a condition for receiving a license.Perhaps a commitment to provide free time
would count in favor of the grant of a license in the first instance. Steps of this sort would
simultaneously promote attention to public affairs and greater diversity of view. They would also help
overcome the distorting effects of soundbites and the corrosive financial pressures faced by candidates
in seeking time on the media.[13]

In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images.They are merely
given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the
50 | P a g e
privilege may reasonably be burdened with the performance by the grantee of some form of public
service. Thus, in De Villata v. Stanley,[14] a regulation requiring interisland vessels licensed to engage in
the interisland trade to carry mail and, for this purpose, to give advance notice to postal authorities of
date and hour of sailings of vessels and of changes of sailing hours to enable them to tender mail for
transportation at the last practicable hour prior to the vessels departure, was held to be a reasonable
condition for the state grant of license. Although the question of compensation for the carriage of mail
was not in issue, the Court strongly implied that such service could be without compensation, as in fact
under Spanish sovereignty the mail was carried free. [15]
In Philippine Long Distance Telephone Company v. NTC,[16] the Court ordered the PLDT to allow
the interconnection of its domestic telephone system with the international gateway facility of Eastern
Telecom. The Court cited (1) the provisions of the legislative franchise allowing such interconnection;
(2) the absence of any physical, technical, or economic basis for restricting the linking up of two separate
telephone systems; and (3) the possibility of increase in the volume of international traffic and more
efficient service, at more moderate cost, as a result of interconnection.
Similarly, in the earlier case of PLDT v. NTC,[17] it was held:

Such regulation of the use and ownership of telecommunications systems is in the exercise of the
plenary police power of the State for the promotion of the general welfare. The 1987 Constitution
recognizes the existence of that power when it provides:

Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the
common good. Individuals and private groups, including corporations, cooperatives, and similar
collective organizations, shall have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to intervene when the common good
so demands (Article XII).

The interconnection which has been required of PLDT is a form of intervention with property rights
dictated by the objective of government to promote the rapid expansion of telecommunications services
in all areas of the Philippines, . . . to maximize the use of telecommunications facilities available, . . . in
recognition of the vital role of communications in nation building . . . and to ensure that all users of the
public telecommunications service have access to all other users of the service wherever they may be
within the Philippines at an acceptable standard of service and at reasonable cost (DOTC Circular No.
90-248). Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory
agency of the State, merely exercised its delegated authority to regulate the use of telecommunications
networks when it decreed interconnection.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the state spends considerable public funds in licensing and supervising such
stations.[18] It would be strange if it cannot even require the licensees to render public service by giving
free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of
television programs involves large expenditure and requires the use of equipment for which huge
investments have to be made. The dissent cites the claim of GMA Network that the grant of free air time
to the COMELEC for the duration of the 1998 campaign period would cost the company P52,380,000,
representing revenue it would otherwise earn if the air time were sold to advertisers, and the amount of

51 | P a g e
P6,600,850, representing the cost of producing a program for the COMELEC Time, or the total amount
of P58,980,850.
The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is
based on the assumption that air time is finished product which, it is said, become the property of the
company, like oil produced from refining or similar natural resources after undergoing a process for their
production. But air time is not owned by broadcast companies. As held in Red Lion Broadcasting Co. v.
F.C.C.,[19] which upheld the right of a party personally attacked to reply, licenses to broadcast do not
confer ownership of designated frequencies, but only the temporary privilege of using
them. Consequently, a license permits broadcasting, but the licensee has no constitutional right to be the
one who holds the license or to monopolize a radio frequency to the exclusion of his fellow
citizens. There is nothing in the First Amendment which prevents the Government from requiring a
licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations
to present those views and voices which are representative of his community and which would otherwise,
by necessity, be barred from the airwaves.[20] As radio and television broadcast stations do not own the
airwaves, no private property is taken by the requirement that they provide air time to the COMELEC.
Justice Panganibans dissent quotes from Tolentino on the Civil Code which says that the air lanes
themselves are not property because they cannot be appropriated for the benefit of any individual.
(p.5) That means neither the State nor the stations own the air lanes. Yet the dissent also says that The
franchise holders can recover their huge investments only by selling air time to advertisers. (p. 13) If air
lanes cannot be appropriated, how can they be used to produce air time which the franchise holders can
sell to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program
and it is for such items as sets and props, video tapes, miscellaneous (other rental, supplies, transportation,
etc.), and technical facilities (technical crew such as director and cameraman as well as on air
plugs). There is no basis for this claim. Expenses for these items will be for the account of the candidates.
COMELEC Resolution No. 2983, 6(d) specifically provides in this connection:

(d) Additional services such as tape-recording or video-taping of programs, the preparation of visual
aids, terms and condition thereof, and the consideration to be paid therefor may be arranged by the
candidates with the radio/television station concerned. However, no radio/television station shall make
any discrimination among candidates relative to charges, terms, practices or facilities for in connection
with the services rendered.

It is unfortunate that in the effort to show that there is taking of private property worth millions of
pesos, the unsubstantiated charge is made that by its decision the Court permits the grand larceny of
precious time, and allows itself to become the peoples unwitting oppressor. The charge is really
unfortunate. In Jackman v. Rosenbaum Co.,[21] Justice Holmes was so incensed by the resistance of
property owners to the erection of party walls that he was led to say in his original draft, a statute, which
embodies the communitys understanding of the reciprocal rights and duties of neighboring landowners,
does not need to invoke the petty larceny of the police power in its justification. Holmess brethren
corrected his taste, and Holmes had to amend the passage so that in the end it spoke only of invoking the
police power.[22] Justice Holmes spoke of the petty larceny of the police power. Now we are being told
of the grand larceny [by means of the police power] of precious air time.

Giving Free Air Time a Duty

52 | P a g e
 Assumed by Petitioner

Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA Network,
Inc. a franchise for the operation of radio and television broadcasting stations. They argue that although
5 of R.A. No. 7252 gives the government the power to temporarily use and operate the stations of
petitioner GMA Network or to authorize such use and operation, the exercise of this right must be
compensated.
The cited provision of R.A. No. 7252 states:

SEC. 5. Right of Government. - A special right is hereby reserved to the President of the Philippines, in
times of rebellion, public peril, calamity, emergency, disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the grantee, to temporarily suspend the operation of
any station in the interest of public safety, security and public welfare, or to authorize the temporary
use and operation thereof by any agency of the Government, upon due compensation to the grantee, for
the use of said stations during the period when they shall be so operated.

The basic flaw in petitioners argument is that it assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of the GMA Network, Inc. This is not so.Under 92 of
B.P. Blg. 881, the COMELEC does not take over the operation of radio and television stations but only
the allocation of air time to the candidates for the purpose of ensuring, among other things, equal
opportunity, time, and the right to reply as mandated by the Constitution.[23]
Indeed, it is wrong to claim an amendment of petitioners franchise for the reason that B.P. Blg. 881,
which is said to have amended R.A. No. 7252, actually antedated it.[24] The provision of 92 of B.P. Blg.
881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, 4 of the latter statute
does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render adequate
public service time implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the government
to communicate with the people on matters of public interest. Thus, R.A. No. 7252 provides:

SEC. 4. Responsibility to the Public. - The grantee shall provide adequate public service time to enable
the Government, through the said broadcasting stations, to reach the population on important public
issues; provide at all times sound and balanced programming; promote public participation such as in
community programming; assist in the functions of public information and education; conform to the
ethics of honest enterprise; and not use its station for the broadcasting of obscene and indecent
language, speech, act or scene, or for the dissemination of deliberately false information or willful
misrepresentation, or to the detriment of the public interest, or to incite, encourage, or assist in
subversive or treasonable acts. (Emphasis added)

It is noteworthy that 49 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken, expressly
provided that the COMELEC Time should be considered as part of the public service time said stations
are required to furnish the Government for the dissemination of public information and education under
their respective franchises or permits. There is no reason to suppose that 92 of B.P. Blg. 881 considers
the COMELEC Time therein provided to be otherwise than as a public service which petitioner is
required to render under 4 of its charter (R.A. No. 7252).In sum, B.P. Blg. 881, 92 is not an invalid
amendment of petitioners franchise but the enforcement of a duty voluntarily assumed by petitioner in
accepting a public grant of privilege.
53 | P a g e
 Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No. 2983-A, 2 of which states:

SEC. 2. Grant of Comelec Time. - Every radio broadcasting and television station operating under
franchise shall grant the Commission, upon payment of just compensation, at least thirty (30) minutes
of prime time daily, to be known as Comelec Time, effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective March 27, 1998, for candidates for local elective
offices, until May 9, 1998. (Emphasis added)

This is because the amendment providing for the payment of just compensation is invalid, being in
contravention of 92 of B.P. Blg. 881 that radio and television time given during the period of the
campaign shall be free of charge. Indeed, Resolution No. 2983 originally provided that the time allocated
shall be free of charge, just as 92 requires such time to be given free of charge. The amendment appears
to be a reaction to petitioners claim in this case that the original provision was unconstitutional because
it allegedly authorized the taking of property without just compensation.
The Solicitor General, relying on the amendment, claims that there should be no more dispute
because the payment of compensation is now provided for. It is basic, however, that an administrative
agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since 2 of Resolution No.
2983-A is invalid, it cannot be invoked by the parties.

Law Allows Flextime for Programming

by Stations, Not Confiscation of
Air Time by COMELEC

It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time
and that theoretically the COMELEC can demand all of the air time of such stations.[25]Petitioners do not
claim that COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television time. What they
claim is that because of the breadth of the statutory language, the provision in question is susceptible of
unbridled, arbitrary and oppressive exercise.[26]
The contention has no basis. For one, the COMELEC is required to procure free air time for
candidates within the area of coverage of a particular radio or television broadcaster so that it cannot, for
example, procure such time for candidates outside that area. At what time of the day and how much time
the COMELEC may procure will have to be determined by it in relation to the overall objective of
informing the public about the candidates, their qualifications and their programs of government. As
stated in Osmea v. COMELEC, the COMELEC Time provided for in 92, as well as the COMELEC Space
provided for in 90, is in lieu of paid ads which candidates are prohibited to have under 11(b) of R.A. No.
6646. Accordingly, this objective must be kept in mind in determining the details of the COMELEC
Time as well as those of the COMELEC Space.
There would indeed be objection to the grant of power to the COMELEC if 92 were so detailed as
to leave no room for accommodation of the demands of radio and television programming. For were that
the case, there could be an intrusion into the editorial prerogatives of radio and television stations.

Differential Treatment of
Broadcast Media Justified
54 | P a g e
 Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to provide free
air time. They contend that newspapers and magazines are not similarly required as, in fact, in Philippine
Press Institute v. COMELEC[27] we upheld their right to the payment of just compensation for the print
space they may provide under 90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the
same treatment under the free speech guarantee of the Constitution as the print media. There are
important differences in the characteristics of the two media, however, which justify their differential
treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum, the
government must, of necessity, allocate broadcast frequencies to those wishing to use them. There is no
similar justification for government allocation and regulation of the print media.[28]
In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or
licensees. The reason for this is that, as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not do in the case of the print media. To
require the radio and television broadcast industry to provide free air time for the COMELEC Time is a
fair exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and pervasive
influence of the broadcast media, [n]ecessarily . . . the freedom of television and radio broadcasting is
somewhat lesser in scope than the freedom accorded to newspaper and print media.[29]

The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of
municipalities accessible to fast and regular transportation. Even here, there are low income masses
who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like
food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming
universal. Their message may be simultaneously received by a national or regional audience of
listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person of every age, persons of
varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose
reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of
the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has
lesser opportunity to cogitate, analyze, and reject the utterance.[30]

Petitioners assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of the law
has no basis. In addition, their plea that 92 (free air time) and 11(b) of R.A. No. 6646 (ban on paid
political ads) should be invalidated would pave the way for a return to the old regime where moneyed
candidates could monopolize media advertising to the disadvantage of candidates with less
resources. That is what Congress tried to reform in 1987 with the enactment of R.A. No. 6646. We are
not free to set aside the judgment of Congress, especially in light of the recent failure of interested parties
to have the law repealed or at least modified.

Requirement of COMELEC Time, a

Reasonable Exercise of the
States Power to Regulate
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 Use of Franchises

Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-
C, 4 of the Constitution does not include the power to prohibit. In the first place, what the COMELEC is
authorized to supervise or regulate by Art. IX-C, 4 of the Constitution,[31] among other things, is the use
by media of information of their franchises or permits, while what Congress (not the COMELEC)
prohibits is the sale or donation of print space or air time for political ads. In other words, the object of
supervision or regulation is different from the object of the prohibition. It is another fallacy for petitioners
to contend that the power to regulate does not include the power to prohibit. This may have force if the
object of the power were the same.
In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the regulatory provision
in the statute. The other half is the mandate to the COMELEC to procure print space and air time for
allocation to candidates. As we said in Osmea v. COMELEC:

The term political ad ban, when used to describe 11(b) of R.A. No. 6646, is misleading, for even as
11(b) prohibits the sale or donation of print space and air time to political candidates, it mandates the
COMELEC to procure and itself allocate to the candidates space and time in the media. There is no
suppression of political ads but only a regulation of the time and manner of advertising.

....

. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise
freely in the mass media, the law provides for allocation, by the COMELEC of print space and air time
to give all candidates equal time and space for the purpose of ensuring free, orderly, honest, peaceful,
and credible elections.

With the prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise their qualifications
and programs of government. More than merely depriving candidates of time for their ads, the failure of
broadcast stations to provide air time unless paid by the government would clearly deprive the people of
their right to know. Art. III, 7 of the Constitution provides that the right of the people to information on
matters of public concern shall be recognized, while Art. XII, 6 states that the use of property bears a
social function [and] the right to own, establish, and operate economic enterprises [is] subject to the duty
of the State to promote distributive justice and to intervene when the common good so demands.
To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see
to it that the variety and vigor of public debate on issues in an election is maintained.For while broadcast
media are not mere common carriers but entities with free speech rights, they are also public trustees
charged with the duty of ensuring that the people have access to the diversity of views on political
issues. This right of the people is paramount to the autonomy of broadcast media. To affirm the validity
of 92, therefore, is likewise to uphold the peoples right to information on matters of public concern. The
use of property bears a social function and is subject to the states duty to intervene for the common good.
Broadcast media can find their just and highest reward in the fact that whatever altruistic service they
may render in connection with the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
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