TOPIC: PREMATURE CAMPAIGNING; CANDIDACY

REFERENCE:
ROSALINDA A. PENERA vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR
G.R. No. 181613 November 25, 2009
FACTS:
We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s
Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30
July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the
COMELEC Second Division. The Decision disqualified Penera from running for the office
of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should
succeed Penera.
In support of her motion for reconsideration, Penera submits the following arguments:
1. Penera was not yet a candidate at the time of the incident under Section 11 of
RA 8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and substantial
evidence against Penera for violation of Section 80 of the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for disqualification and has
consistently disputed the charge of premature campaigning.
4. The admission that Penera participated in a motorcade is not the same as
admitting she engaged in premature election campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring
for or seeking an elective public office, who has filed a certificate of candidacy x x x." The
second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of
RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the
period for filing] shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy." The immediately succeeding proviso
in the same third paragraph states that "unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid campaign period." These
two provisions determine the resolution of this case.
The Decision states that "[w]hen the campaign period starts and [the person who filed his
certificate of candidacy] 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."
Under the Decision, a candidate may already be liable for premature campaigning after
the filing of the certificate of candidacy but even before the start of the campaign period.
From the filing of the certificate of candidacy, even long before the start of the campaign
period, the Decision considers the partisan political acts of a person so filing a certificate
of candidacy "as the promotion of his/her election as a candidate." Thus, such person can
be disqualified for premature campaigning for acts done before the start of the campaign
period. In short, the Decision considers a person who files a certificate of candidacy
already a "candidate" even before the start of the campaign period.
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC, which held that a person who files a certificate
of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court
explained:
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code
are: (1) a person engages in an election campaign or partisan political activity; (2) the act
is designed to promote the election or defeat of a particular candidate or candidates; (3)
the act is done outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a
candidate is one who "has filed a certificate of candidacy" to an elective public office.
Unless one has filed his certificate of candidacy, he is not a "candidate." The third element
requires that the campaign period has not started when the election campaign or partisan
political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the
last day, which under Section 75 of the Omnibus Election Code is the day before the start
of the campaign period, then no one can be prosecuted for violation of Section 80 for acts
done prior to such last day. Before such last day, there is no "particular candidate or
candidates" to campaign for or against. On the day immediately after the last day of filing,
the campaign period starts and Section 80 ceases to apply since Section 80 covers only
acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may
only apply to acts done on such last day, which is before the start of the campaign period
and after at least one candidate has filed his certificate of candidacy. This is perhaps the
reason why those running for elective public office usually file their certificates of
candidacy on the last day or close to the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan political
activities were committed outside of the campaign period. The only question is whether
Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate"
when he committed those acts before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of
certificates of candidacy to 120 days before election day. Thus, the original deadline was
moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question
is: did this change in the deadline for filing the certificate of candidacy make one who filed
his certificate of candidacy before 2 January 2004 immediately liable for violation of
Section 80 if he engaged in election campaign or partisan political activities prior to the
start of the campaign period on 24 March 2004?
ISSUE/S:
1. Whether or not Penera guilty of premature campaigning?
2. Whether or not premature campaigning be committed by a person who is not a
candidate?
RULING: No to both.
Under the assailed September 11, 2009 Decision, a candidate may already be liable for
premature campaigning after the filing of the certificate of candidacy but even before the
start of the campaign period. Thus, such person can be disqualified for premature
campaigning for acts done before the start of the campaign period. In short, the Decision
considers a person who files a certificate of candidacy already “candidate” even before
the start of the campaign period.
Now the Court holds that the assailed Decision is contrary to the clear intent and letter of
the law. In Lanot v. COMELEC,it held that a person who files a certificate of candidacy is
not a candidate until the start of the campaign period. Lanot was decided on the ground
that one who files a certificate of candidacy is not a candidate until the start of the
campaign period.
Congress elevated the Lanot doctrine into a statute by specifically inserting it as the
second sentence of the third paragraph of the amended Section 15 of RA 8436. In RA
9369, Congress inserted the word “only” so that the first proviso now reads:
x x x Provided, that, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period x x x.
Thus, Congress not only reiterated but also strengthened its mandatory directive that
election offenses can be committed by a candidate “only” upon the start of the campaign
period. This clearly means that before the start of the campaign period, such election
offenses cannot be so committed.
In layman’s language, this means that a candidate is liable for an election offense only
for acts done during the campaign period, not before. The law is clear as daylight — any
election offense that may be committed by a candidate under any election law cannot be
committed before the start of the campaign period. In ruling that Penera is liable for
premature campaigning for partisan political acts before the start of the campaigning, the
assailed Decision ignores the clear and express provision of the law.
TOPIC: ELECTION LAW; FREEDOM OF SPEECH
REFERENCE:
NATIONAL PRESS CLUB vs. COMMISSION ON ELECTIONS
G.R. No. 102653 March 5, 1992
FACTS:
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 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)
ISSUE/S:
1. Whether or Not Section 11 (b) of Republic Act No. 6646 constitutional.
RULING: YES.
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 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." In our own society,
equality of opportunity to proffer oneself for public office, without regard to the level of
financial resources that one may have at one's disposal, is clearly an important value.
One of the basic state policies given constitutional rank by Article II, Section 26 of the
Constitution is the egalitarian demand that "the State shall guarantee equal access to
opportunities for public service and prohibit political dynasties as may be defined by law."
The 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.
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. Section 11 (b) does not purport in any way to
restrict the reporting by newspapers or radio or television stations of news or news-worthy
events relating to candidates, their qualifications, political parties and programs of
government. Moreover, Section 11 (b) does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or commentators or columnists in
respect of candidates, their qualifications, and programs and so forth, so long at least as
such comments, opinions and beliefs are not in fact advertisements for particular
candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any
report or commentary other coverage that, in responsible media, is not paid for by
candidates for political office. Section 11 (b) as designed to cover only paid political
advertisements of particular candidates.
The limiting impact of Section 11 (b) upon the right to free speech of the candidates
themselves is not unduly repressive or unreasonable.
TOPIC: ELECTION PROPAGANDA
REFERENCE:
BLO UMPAR ADIONG vs. COMMISSION ON ELECTIONS
G.R. No. 103956 March 31, 1992
FACTS:
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 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:
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."
ISSUE/S:
1. Whether or not the 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.
RULING: The petition is hereby GRANTED.
The portion of Section 15 (a) of Resolution No. 2347 of the COMELEC 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. 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. The prohibition unduly infringes on the citizen’s fundamental right
of free speech enshrined in the Constitution (Sec. 4, Article III). 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.
Also, the questioned prohibition premised on the statute (RA 6646) and as couched in the
resolution is void for overbreadth. 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 (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.) 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. (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.)
Additionally, 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. 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.
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.
TOPIC: ELECTION CAMPAIGN AND PROPAGANDA
REFERENCE:
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members, represented
by its President, Amado P. Macasaet and its Executive Director Ermin F. Garcia, Jr. vs.
COMMISSION ON ELECTIONS
G.R. No. L-119694 May 22, 1995
FACTS:
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 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 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.
ISSUE/S:
1. Whether or not Comelec Resolution No. 2772 is unconstitutional.
RULING: YES.
The Supreme Court declared the Resolution as unconstitutional. It held that to compel
print media companies to donate “Comelec space” amounts to “taking” of private personal
property without payment of the just compensation required in expropriation cases.
Moreover, the element of necessity for the taking has not been established by respondent
Comelec, considering that the newspapers were not unwilling to sell advertising space.
The taking of private property for public use is authorized by the constitution, but not
without payment of just compensation. Also Resolution No. 2772 does not constitute a
valid exercise of the police power of the state. In the case at bench, there is no showing
of existence of a national emergency to take private property of newspaper or magazine
publishers.
TOPIC: ELECTION CAMPAIGN
REFERENCE:
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES,
INC. and GMA NETWORK, INC. vs. THE COMMISSION ON ELECTIONS
G.R. No. 132922 April 21, 1998
FACTS:
In Osmeña 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.
Petitioner claims that it suffered losses running to several million pesos in providing
COMELEC Time in connection with the 1992 presidential election and 1995 senatorial
election and that it stands to suffer even more should it be required to do so again this
year. Petitioners claim that the primary source of revenue of the radio and television
stations is the sale of air time to advertisers and to require these stations to provide free
air time is to authorize unjust taking of private property. According to petitioners, in 1992
it lost P22,498,560.00 in providing free air time for one hour each day and, in this year’s
elections, it stands to lost P58,980,850.00 in view of COMELEC’s requirement that it
provide at least 30 minutes of prime time daily for such.
ISSUE/S:
1. Whether or not Section 92 of B.P. No. 881 denies radio and television broadcast
companies the equal protection of the laws.
2. Whether or not Section 92 of B.P. No. 881 constitutes taking of property without due
process of law and without just compensation.
RULING:
Petitioner’s argument is without merit. All broadcasting, whether 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 that there are frequencies to assign.
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 to use them. Thus, such exercise of the
privilege may reasonably be burdened with the performance by the grantee of some form
of public service. In granting the privilege to operate broadcast stations and supervising
radio and television stations, the state spends considerable public funds in licensing and
supervising them.
The argument that the subject law singles out radio and television stations to provide free
air time as against newspapers and magazines which require payment of just
compensation for the print space they may provide is likewise without merit. Regulation
of the broadcast industry requires spending of public funds which it does not do in the
case of print media. To require the broadcast industry to provide free air time for
COMELEC is a fair exchange for what the industry gets.
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.