CONCURRING OPINION

MELO, J.:

Petitioners Social Weather stations, Inc. and Kamahalan Publishing Corporation, publisher of Manila Standard, have brought this action to declare as unconstitutional Section 5.4 of Republic Act No. 9006. Petitioners claim that said provision, which prohibits the publication of surveys affecting national candidates fifteen days before an election, and surveys affecting local candidates seven days before an election, constitutes prior restraint on the exercise of the freedom of speech without any clear and present danger to justify such restraint.

Respondent Commission on Elections, on the other hand, justifies the restrictions on the ground that the same is necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys, it being claimed that the indiscriminate publication of surveys up to election day led to misinformation, junking of weak and losing candidates by parties, and the creation of a bandwagon effect in favor of certain candidates.

The majority opinion, written by Mr. Justice Mendoza concludes that the disputed provision constitutes an unconstitutional abridgment of the freedom of speech, expression and the press.

I have to agree.

Freedom of speech has been defined as the liberty to know, to utter, and to argue freely according to conscience, above all liberties. It includes not only the right to express one’s views, but also other cognate rights relevant to the free communication of ideas, including the right to be informed on matters of public concern. Indeed, the principle of free political discussion is one of the touchstones of democracy, it being a guarantee that the people will be kept informed at all times, thereby ensuring their intelligent discharge of the responsibilities of sovereignty.

However, despite the primacy of free expression in the hierarchy of fundamental civil liberties, the same is not absolute. It can be validly regulated. Regulation must, however, be reasonable. It must be shown that the interest of the public, generally, as distinguished from that of a particular class, requires such regulation. Second, it must appear that the means used are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.

The provision in dispute plainly constitute prior restraint on the freedom of expression. As aptly stated by the noted constitutionalist Fr. Bernas, “any system of prior restraint of expression comes to this court bearing a heavy presumption against its constitutional validity, with the Government carrying a heavy burden of showing justification for the enforcement of such a restraint” (The Constitution of the Republic of the Philippines: a Commentary, p. 142).

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

Respondent COMELEC has fallen short of the required effort to overthrow this presumption, it having failed to show that the means used by Section 5.4 of Republic Act No. 9006 are reasonably necessary for the accomplishment of the purpose, and that the same are not unduly oppressive upon individuals.

It bears emphasizing that Section 5.4 limits itself to prohibiting the publication of surveys affecting national candidates fifteen days before an election, and surveys affecting local candidates seven days before an election. It does not restrict reporting by tri-media of the merits or demerits of national and local candidates and their chances at the polls. Neither does it prohibit commentaries by radio broadcasters and TV anchors, the expression of opinions by columnist and editors of newspapers. In fact, the provision in dispute does not prohibit paid hacks from trumpeting the qualifications of their candidates. In fine, while survey organizations who employ scientific methods and engage personnel trained in the statistical sciences to determine socio-political trends, are barred from publishing their results within the specified periods, any two-bit scribbler masquerading as a legitimate journalist can write about the purported strong showing of his candidate without any prohibition or restriction. The means used to regulate free expression is thus, not reasonable necessary for the accomplishment of the purpose. Worse, it is unduly oppressive upon survey organizations, which have been singled out for suppression, on the mere apprehension that their survey results will lead to misinformation, “junking,” or contrived bandwagon effect.

Admittedly, not all organizations which generate surveys are legitimate. Some publish surveys which are, at best, disingenuous. Yet, the possibility of abuse does not authorize government to restrict the activities of survey organizations at the expense of the freedom of expression. The very foundation of democracy is, as stated in Abrams vs. U.S. (250 US 610), grounded on the belief

[T]hat the ultimate good desired is better reached by a free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes can be safely carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

To reiterate, the prohibition against surveys within the specified period is a prior and unreasonable restraint upon the freedom of expression which is not reasonable necessary to achieve the purpose of clean, honest, orderly and peaceful elections.

For the foregoing reasons, I vote to grant the petition for prohibition and to declare Section 5.4 of R.A. No. 9006 unconstitutional.