G.R.
No. 90878 January 29, 1990
PABLITO
V. SANIDAD, petitioner,
vs.
THE COMMISSION ON ELECTIONS, respondent.
This is a petition for certiorari
assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on
the ground that it violates the constitutional guarantees of the freedom of
expression and of the press.
On October 23, 1989, Republic Act No.
6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA
AUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of
Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain
Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera
Autonomous Region, shall take part in a plebiscite for the ratification of said
Organic Act originally scheduled last December 27, 1989 which was, however,
reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated
December 27, 1989.
The Commission on Elections, by virtue
of the power vested by the 1987 Constitution, the Omnibus Election Code (BP
881), said R.A. 6766 and other pertinent election laws, promulgated Resolution
No. 2167, to govern the conduct of the plebiscite on the said Organic Act for
the Cordillera Autonomous Region.
In a petition dated November 20, 1989,
herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of
the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper
circulated in the City of Baguio and the Cordilleras, assailed the
constitutionality of Section 19 of Comelec Resolution No. 2167, which provides:
Section 19. Prohibition on
columnists, commentators or announcers. — During the plebiscite campaign
period, on the day before and on the 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.
It is alleged by petitioner that said
provision is void and unconstitutional because it violates the constitutional
guarantees of the freedom of expression and of the press enshrined in the
Constitution.
Unlike a regular news reporter or news
correspondent who merely reports the news, petitioner maintains that as a
columnist, his column obviously and necessarily contains and reflects his
opinions, views and beliefs on any issue or subject about which he writes.
Petitioner believes that said provision of COMELEC Resolution No. 2167
constitutes a prior restraint on his constitutionally-guaranteed freedom of the
press and further imposes subsequent punishment for those who may violate it
because it contains a penal provision, as follows:
Article XIII, Section 122, Election
Offenses and Banned Acts or Activities. — Except to the extent that the same
may not be applicable plebiscite. the banned acts/activities and offenses
defined in and penalized by the Omnibus Election Code ('Sections 261, 262, 263
and Article' XXII, B.P. Blg. 881) and the pertinent provisions of R.A. No. 6646
shall be aplicable to the plebiscite governed by this Resolution.
Petitioner likewise maintains that if
media practitioners were to express their views, beliefs and opinions on the
issue submitted to a plebiscite, it would in fact help in the government drive
and desire to disseminate information, and hear, as well as ventilate, all
sides of the issue.
On November 28, 1989, We issued a
temporary restraining order enjoining respondent Commission on Elections from
enforcing and implementing Section 19 of Resolution No. 2167. We also required
the respondent to comment on the petition.
On January 9, 1990, respondent
Commission on Elections, through the Office of the Solicitor General filed its
Comment.
Respondent Comelec maintains that the
questioned provision of Comelec Resolution No. 2167 is not violative of the
constitutional guarantees of the freedom of expression and of the press. Rather
it is a valid implementation of the power of the Comelec to supervise and
regulate media during election or plebiscite periods as enunciated in Article IX-C,
Section 4 of the 1987 Constitution of the Republic of the Philippines.
It is stated further by respondent
that Resolution 2167 does not absolutely bar petitioner from expressing his
views and/or from campaigning for or against the Organic Act. He may still
express his views or campaign for or against the act through the Comelec space
and airtime. This is provided under Sections 90 and 92 of BP 881:
Section 90. Comelec Space. —
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 within the area in which the newspaper
is circulated.
Section 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.
Respondent Comelec has relied much on
Article IX-C of the 1987 Constitution and Section 11 of R.A. 6646 as the basis
for the promulgation of the questioned Section 19 of Comelec Resolution 2167.
Article IX-C of the 1987 Constitution
provides:
The Commission may, during the
election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency
or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly,
honest, peaceful and credible elections.
Similarly, Section 11 of Republic Act
No. 6646 (The Electoral Reform Law of 1987) likewise provides:
Prohibited forms of election
Propaganda. — In addition to the forms of
election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it
shall be unlawful: ...
(b) for any newspaper, radio,
broadcasting or television station, or other mass media, or any person making
use of the mass media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the Commission as provided
under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer, or personality who is a candidate for any elective
office shall take a leave of absence from his work as such during the campaign
period. (Emphasis ours)
However, it is clear from Art. IX-C of
the 1987 Constitution that what was granted to the Comelec was the power to
supervise and regulate the use and enjoyment of franchises, permits or other
grants issued for the operation of transportation or other public
utilities, media of communication or information to the end that equal
opportunity, time and space, and the right to reply, including reasonable,
equal rates therefor, for public information campaigns and forums among
candidates are ensured. The evil sought to be prevented by this provision
is the possibility that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or radio or television
time. This is also the reason why a "columnist, commentator, announcer or
personality, who is a candidate for any elective office is
required to take a leave of absence from his work during the campaign period
(2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or
commentator who is also a candidate would be more exposed to the voters to the
prejudice of other candidates unless required to take a leave of absence.
However, neither 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 a plebiscite.
Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec,
L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of
certain forms of election propaganda was assailed, We ruled therein that the
prohibition is a valid exercise of the police power of the state "to prevent
the perversion and prostitution of the electoral apparatus and of the denial of
equal protection of the laws." The evil sought to be prevented in an
election which led to Our ruling in that case does not obtain in a plebiscite.
In a plebiscite, votes are taken in an area on some special political matter
unlike in an election where votes are cast in favor of specific persons for
some office. In other words, the electorate is asked to vote for or against
issues, not candidates in a plebiscite.
Anent respondent Comelec's argument
that Section 19 of Comelec Resolution 2167 does not absolutely bar
petitioner-columnist from expressing his views and/or from campaigning for or
against the organic act because he may do so through the Comelec space and/or
Comelec radio/television time, the same is not meritorious. While the
limitation does not absolutely bar petitioner's freedom of expression, it is
still a restriction on his choice of the forum where he may express his
view. No reason was advanced by respondent to justify such abridgement. We hold
that this form of regulation is tantamount to a restriction of petitioner's
freedom of expression for no justifiable reason.
Plebiscite issues are matters of
public concern and importance. The people's right to be informed and to be able
to freely and intelligently make a decision would be better served by access to
an unabridged discussion of the issues, including the forum. The people
affected by the issues presented in a plebiscite should not be unduly burdened
by restrictions on the forum where the right to expression may be exercised.
Comelec spaces and Comelec radio time may provide a forum for expression but
they do not guarantee full dissemination of information to the public concerned
because they are limited to either specific portions in newspapers or to
specific radio or television times.
ACCORDINGLY, the instant petition is
GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void
and unconstitutional. The restraining order herein issued is hereby made
permanent.
SO ORDERED.
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