CONCURRING
OPINION
PANGANIBAN, J.:
I concur in the
well-written ponencia of Mr. Justice Vicente V. Mendoza holding that
Section 5.4[1] of Republic Act (RA) No. 9006 is
unconstitutional. The provision is a
patent infringement of the fundamental freedoms of expression and of the press.
In the recent case ABS-CBN
Broadcasting Corporation v. Commission on Elections,[2] the Court en banc junked Comelec Resolution
No. 98-1419 dated April 21, 1998, which restrained the conduct of exit polls, a
species of electoral surveys. We held
that “the holding of exit polls and the dissemination of their results through
mass media constitute an essential part of the freedoms of speech and of the
press.” They cannot be banned “totally
in the guise of promoting clean, honest, orderly an credible elections. Quite the contrary, exit polls -- properly
conducted and publicized -- can be vital tools in eliminating the evils of
election-fixing and fraud.” As mankind
pushes the frontiers of science and technology in mass communications, so must
the scope of free expression expand[3] to cover the conduct and the publication of
surveys.
In said case, we visited
the long-standing fundamental principle underlying democracies that the freedom
of expression is a preferred right, standing on a higher level than
other substantive liberties. Indeed, as
this nation has recently witnessed once again, lessons of history, both
political and leagal, illustrate that freedom of thought and speech is an
indispensable condition of nearly every other form of freedom.[4] Thus, our Constitution explicitly mandates
that no law shall be passed abridging the freedoms of speech and of the press.[5]
While the exercise of
these basic rights could not be absolute – liberty is never absolute -- but may
be subject to regulation by the state, any limitation should be justified by a clear
and present danger of such substantive character that the state has a right
to prevent.[6] In other words, the evil sought to be
avoided must be so substantive as to justify a clamp over one’s mouth or a
restraint of a writing instrument.[7]
There is, however, no
compelling or justifiable reason for the prohibition made by congress under the
assailed law. The Comelec also utterly
fails to convince me that a substantive danger, which the state has a right to
prevent, lies lurking and threatening to explode if ignited by the conduct and
the dissemination of the prohibited surveys.
No lover of freedom, no
guardian of the Constitution and no advocate of democracy can agree to this
unreasonable restraint.
Indeed, Daily Herald
Co. v. Munro[8] held that the general interest of the state
in insulating voters from outside influences is insufficient to justify speech
regulation.
WHEREFORE, I vote to GRANT the Petition and to DECLARE
SECTION 5.4 OF RA 9006 UNCONSTITUTIONAL.
[1] “Surveys affecting
national candidates shall not be published fifteen (15) days before an election
and surveys affecting local candidates shall not be published seven (7) days
before an election.”
[2] 323 SCRA 811,
January 28, 2000.
[3] Panganiban,
Transparency, Unanimity & Diversity, 2000 ed., p. 376.
[4] Supra, citing
Salonga v. Cruz Pano, 134 SCRA 438, 458-459, February 18, 1985. See also Gonzales v. Comelec, 27 SCRA
835, 849, 856-857, April 18, 1969; Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191, June
5, 1973; National Press Club v. Comelec, 207 SCRA 1, 9, March 5, 1992;
Blo Umpar Adiong v. Comelec, 207 SCRA 712, 715, March 31, 1992.
[5] Sec. 4, Art. III,
Constitution.
[6] See Priomicias v.
Fugoso, 80 Phil. 71 (1948); American Bible Society v. City of Manila;
101 Phil. 386 (1957); Iglesia ni Cristo v. MTRCB, 259 SCRA 529, July 26,
1996.
[7] Adiong v.
Comelec, supra.
[8] 838 F 2d 380 (9th Cir. 1988), cited in ABS-CBN v.
Comelec, supra.