c61 Ppi vs. Comelec

8/18/2019 c61 Ppi vs. Comelec

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PPI vs. COMELECTaking in the constitutional sense

Facts: Respondent Comelec promulgated Resolution No. 2772 directingnewspapers to provide free Comelec space of not less than one-half page for

the common use of political parties and candidates. The Comelec space shallbe allocated by the Commission, free of charge, among all candidates toenable them to mae nown their !uali"cations, their stand on public #ssueand their platforms of government. The Comelec space shall also be used bythe Commission for dissemination of vital election information.

$etitioner $hilippine $ress #nstitute, #nc. %$$#&, a non-pro"t organi'ation ofnewspaper and maga'ine publishers, ass the (upreme Court to declareComelec Resolution No. 2772 unconstitutional and void on the ground that itviolates the prohibition imposed by the Constitution upon the governmentagainst the taing of private property for public use without )ust

compensation. *n behalf of the respondent Comelec, the (olicitor +eneralclaimed that the Resolution is a permissible eercise of the power ofsupervision %police power& of the Comelec over the information operations ofprint media enterprises during the election period to safeguard and ensure afair, impartial and credible election.

Issue:

hether or not Comelec Resolution No. 2772 is unconstitutional.

Held: The (upreme Court declared the Resolution as unconstitutional. #t heldthat to compel print media companies to donate Comelec space/ amountsto taing/ of private personal property without payment of the )ustcompensation re!uired in epropriation cases. 0oreover, the element ofnecessity for the taing has not been established by respondent Comelec,considering that the newspapers were not unwilling to sell advertising space. The taing of private property for public use is authori'ed by theconstitution, but not without payment of )ust compensation. 1lso ResolutionNo. 2772 does not constitute a valid eercise of the police power of the state.#n the case at bench, there is no showing of eistence of a national

emergency to tae private property of newspaper or maga'ine publishers.


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Republic of the $hilippinesSUPREME COURT

0anila

N 31NC

.R. !o. L"##$%$& Ma' (() #$$*

PHILIPPI!E PRESS I!STITUTE) I!C.) +o, and in -ehal+ o+ #$/e/-e,s) ,e0,esented -' its P,esident) 1/ado P. Macasaet and itsE2ecutive 3i,ecto, E,/in F. a,cia) 4,.) petitioner,vs.COMMISSIO! O! ELECTIO!S) respondent.

R ( * 4 5 T # * N

FELICI1!O) J.:

The $hilippine $ress #nstitute, #nc. %6$$#6& is before this Court assailing theconstitutional validity of Resolution No. 2772 issued by respondentCommission on lections %6Comelec6& and its corresponding Comelecdirective dated 22 0arch 889, through a $etition for Certiorari and$rohibition. $etitioner $$# is a non-stoc, non-pro"t organi'ation of

newspaper and maga'ine publishers.

*n 2 0arch 889, Comelec promulgated Resolution No. 2772, which reads inpart:

(ec. 2. Comelec Space. ; The Commission shall procurefree print space of not less than one half (1/2) page in at leastone newspaper of general circulation in every province or city for use as "Comelec Space" from 0arch


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periodical is circulated to enable the candidates to mae nowntheir !uali"cations, their stand on public issues and theirplatforms and programs of government.

6Comelec Space6 shall also be used by the Commission for

dissemination of vital election information.

(ec. >. !llocation of Comelec Space. ; %a& 6Comelec (pace6 shallalso be available to all candidatesduring the periods stated in(ection 2 hereof. #ts allocation shall be eual and impartialamong all candidates for the same o#ce. 1ll candidatesconcerned shall be furnished a copy of the allocation of 6Comelec(pace6 for their information, guidance and compliance.

%b& 1ny candidate desiring to avail himself of 6Comelec (pace6from newspapers or publications based in the 0etropolitan

0anila 1rea shall submit an application therefor, in writing, to theCommittee on 0ass 0edia of the Commission. 1ny candidatedesiring to avail himself of 6Comelec (pace6 in newspapers orpublications based in the provinces shall submit his applicationtherefor, in writing, to the $rovincial lection (upervisorconcerned. 1pplications for availment of 6Comelec (pace6 maybe"led at any time from the date of e?ectivity of this Resolution.

%c& The Committee on 0ass 0edia and the $rovincial lection(upervisors shall allocate available6Comelec Space6 among thecandidates concerned by lottery of which said candidates shall

be noti"ed in advance, in writing, to be present personally or byrepresentative to witness the lottery at the date, time and placespeci"ed in the notice. 1ny party ob)ecting to the result of thelottery may appeal to the Commission.

%d& The candidates concerned shall be noti"ed by the Committeeon 0ass 0edia or the $rovincial lection (upervisor, as the casemaybe, su@ciently in advance and in writing of the date of issueand the newspaper or publication allocated to him, and the timewithin which he must submit the written material for publicationin the 6Comelec (pace6.

(ec. A. Undue $eference to Candidates/%olitical %arties in&ewspapers. ; No newspaper or publication shall allow to beprinted or published in the news, opinion, features, or othersections of the newspaper or publication accounts or commentswhich manifestly favor or oppose any candidate or political party


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by unduly or repeatedly referring to or including therein saidcandidate or political party. Bowever, unless the facts andcircumstances clearly indicate otherwise, the Commission willrespect the determination by the publisher andor editors of thenewspapers or publications that the accounts or views published

are signi"cant, newsworthy and of public interest. %mphasissupplied&

1pparently in implementation of this Resolution, Comelec throughCommissioner Regalado . 0aambong sent identical letters, dated 22 0arch889, to various publishers of newspapers lie the 'usiness orld,the %hilippine Star , the alaya and the %hilippine *imes +ournal, all membersof $$#. These letters read as follows:

This is to advise you that pursuant to Resolution No. 2772 of theCommission on lections, you aredirected to provide free print

space of not less than one half %2& page for use as "ComelecSpace"or similar to the print support which you have etendedduring the 0ay , 882 synchroni'ed elections which was 2 fullpages for each political party "elding senatorial candidates, from0arch


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%2&, 1rticle ### of the 8A7 Constitution. Dinally, $$# argues that (ection A ofComelec Resolution No. 2772 is violative of the constitutionally guaranteedfreedom of speech, of the press and of epression. #

*n 2E 1pril 889, this Court issued a Temporary Restraining *rder en)oining

Comelec from enforcing and implementing (ection 2 of Resolution No. 2772,as well as the Comelec directives addressed to various print mediaenterprises all dated 22 0arch 889. The Court also re!uired the respondentto "le a Comment on the $etition.

The *@ce of the (olicitor +eneral "led its Comment on behalf of respondentComelec alleging that Comelec Resolution No. 2772 does not impose uponthe publishers any obligation to provide free print space in the newspapersas it does not provide any criminal or administrative sanction for non-compliance with that Resolution. 1ccording to the (olicitor +eneral, the!uestioned Resolution merely established guidelines to be followed in

connection with the procurement of 6Comelec space,6 the procedure for andmode of allocation of such space to candidates and the conditions orre!uirements for the candidateFs utili'ation of the 6Comelec space6 procured.1t the same time, however, the (olicitor +eneral argues that even if the!uestioned Resolution and its implementing letter directives are viewedas mandatory , the same would nevertheless be valid as an eercise of thepolice power of the (tate. The (olicitor +eneral also maintains that (ection Aof Resolution No. 2772 is a permissible eercise of the power of supervisionor regulation of the Comelec over the communication and informationoperations of print media enterprises during the election period to safeguardand ensure a fair, impartial and credible election. (

1t the oral hearing of this case held on 2A 1pril 889, respondent Comelecthrough its Chairman, Bon. 3ernardo $ardo, in response to in!uiries from theChief Gustice and other 0embers of the Court, stated that Resolution No.2772, particularly (ection 2 thereof and the 22 0arch 889 lettersdispatched to various members of petitioner $$#, were not intended tocompel those members to supply Comelec with free print space. Chairman$ardo represented to the Court that Resolution and the related letter-directives were merely designed to solicit from the publishers the same freeprint space which many publishers had voluntarily given to Comelec duringthe election period relating to the 0ay 882 elections. #ndeed, the

Chairman stated that the Comelec would, that very afternoon, meet andadopt an appropriate amending or clarifying resolution, a certi"ed true copyof which would forthwith be "led with the Court.

*n 9 0ay 889, the Court received from the *@ce of the (olicitor +eneral amanifestation which attached a copy of Comelec Resolution No. 2772-1dated > 0ay 889. The operative portion of this Resolution follows:


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N* TBRD*R, pursuant to the powers vested in it by theConstitution, the *mnibus lection Code, Republic 1cts No.


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accordingly, (ection 2 of Resolution No. 2772 persists in its original form. Thus, we must point out that, as presently worded, and in particular asinterpreted and applied by the Comelec itself in its 22 0arch 889 letter-directives to newspaper publishers, (ection 2 of Resolution No. 2772 isclearly susceptible of the reading that petitioner $$# has given it. That

Resolution No. 2772 does not, in epress terms, threaten publishers whowould disregard it or its implementing letters with some criminal or othersanction, does not by itself demonstrate that the ComelecFs original intentionwas simply to solicit or re!uest voluntary donations of print space frompublishers. 1 written communication o@cially directing a print mediacompany to supply free print space, dispatched by a government %here aconstitutional& agency and signed by a member of the Commissionpresumably legally authori'ed to do so, is bound to produce a coercive e?ectupon the company so addressed. That the agency may not be legallyauthori'ed to impose, or cause the imposition of, criminal or other sanctionsfor disregard of such directions, only aggravates the constitutional di@culties

inhearing in the present situation. The enactment or addition of suchsanctions by the legislative authority itself would be open to seriousconstitutional ob)ection.

To compel print media companies to donate 6Comelec-space6 of thedimensions speci"ed in (ection 2 of Resolution No. 2772 %not less than one-half page&, amounts to 6taing6 of private personal property for public use orpurposes. (ection 2 failed to specify the intended freuency of suchcompulsory 6donation:6 only once during the period from < 0arch 889 %or2 0arch 889& until 2 0ay 889K or everyday or once a weeK or as oftenas Comelec may direct during the same periodK The etent of the taing or

deprivation is not insubstantialJ this is not a case of a de minimis temporarylimitation or restraint upon the use of private property. The monetary valueof the compulsory 6donation,6 measured by the advertising rates ordinarilycharged by newspaper publishers whether in cities or in non-urban areas,may be very substantial indeed.

The taing of print space here sought to be e?ected may "rst be appraisedunder the rubric of epropriation of private personal property for public use. The threshold re!uisites for a lawful taing of private property for public useneed to be eamined here: one is the necessity for the ta,ingJ another isthe legal authority to eect the ta,ing. The element of necessity for the

taing has not been shown by respondent Comelec. #t has not beensuggested that the members of $$# are unwilling to sell print space at theirnormal rates to Comelec for election purposes. #ndeed, the unwillingness orreluctance of Comelec to buy print space lies at the heart of theproblem. (imilarly, it has not been suggested, let alone demonstrated, thatComelec has been granted the power of eminent domain either by theConstitution or by the legislative authority. 1 reasonable relationship


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between that power and the enforcement and administration of election lawsby Comelec must be shownJ it is not casually to be assumed.

That the taing is designed to subserve 6public use6 is not contested bypetitioner $$#. e note only that, under (ection = of Resolution No. 2772, the

free 6Comelec space6 sought by the respondent Commission would be usednot only for informing the public about the identities, !uali"cations andprograms of government of candidates for elective o@ce but also for6dissemination of vital election information6 %including, presumably, circulars,regulations, notices, directives, etc. issued by Comelec&. #t seems to theCourt a matter of )udicial notice that government o@ces and agencies%including the (upreme Court& simply purchase print space, in the ordinarycourse of events, when their rules and regulations, circulars, notices and soforth need o@cially to be brought to the attention of the general public.

The taing of private property for public use is, of course, authori'ed by the

Constitution, but not without payment of 6)ust compensation6 %1rticle ###,(ection 8&. 1nd apparently the necessity of paying compensation for6Comelec space6 is precisely what is sought to be avoided by respondentCommission, whether (ection 2 of Resolution No. 2772 is read as petitioner$$# reads it, as an assertion of authority to re!uire newspaper publishers to6donate6 free print space for Comelec purposes, or as an ehortation, orperhaps an appeal, to publishers to donate free print space, as (ection ofResolution No. 2772-1 attempts to suggest. There is nothing at all to preventnewspaper and maga'ine publishers from voluntarily giving free print spaceto Comelec for the purposes contemplated in Resolution No. 2772. (ection 2of Resolution No. 2772 does not, however, provide a constitutional basis for

compelling publishers, against their will, in the ind of factual contet herepresent, to provide free print space for Comelec purposes. (ection 2 does notconstitute a valid eercise of the power of eminent domain.

e would note that the ruling here laid down by the Court is entirely in linewith the theory of democratic representative government. The economiccosts of informing the general public about the !uali"cations and programsof those seeing elective o@ce are most appropriately distributed as widelyas possible throughout our society by the utili'ation of public funds,especially funds raised by taation, rather than cast solely on one smallsector of society, i0e0, print media enterprises. The bene"ts which Low from a

heightened level of information on and the awareness of the electoralprocess are commonly thought to be community-wideJ the burdens should beallocated on the same basis.

1s earlier noted, the (olicitor +eneral also contended that (ection 2 ofResolution No. 2772, even if read as compelling publishers to 6donate66Comelec space, 6 may be sustained as a valid eercise of the police powerof the state. This argument was, however, made too casually to re!uire


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prolonged consideration on our part. Dirstly, there was no e?ort %andapparently no inclination on the part of Comelec& to show that the policepower ; essentially a power of legislation ; has been constitutionallydelegated to respondent Commission. & (econdly, while private property mayindeed be validly taen in the legitimate eercise of the police power of the

state, there was no attempt to show compliance in the instant case with there!uisites of a lawful taing under the police power.*

(ection 2 of Resolution No. 2772 is a blunt and heavy instrument thatpurports, without a showing of eistence of a national emergency or otherimperious public necessity, indiscriminately and without regard to theindividual business condition of particular newspapers or maga'ines locatedin di?ering parts of the country, to tae private property of newspaper ormaga'ine publishers. No attempt was made to demonstrate that a real andpalpable or urgent necessity for the taing of print space confronted theComelec and that (ection 2 of Resolution No. 2772 was itself the only

reasonable and calibrated response to such necessity available to theComelec. (ection 2 does not constitute a valid eercise of the police power of the (tate.

e turn to (ection A of Resolution No. 2772, which needs to be !uoted in fullagain:

(ec. A. Undue $eference to Candidates/%olitical %arties in&ewspapers0 No newspaper or publication shall allow to beprinted or published in the news, opinion, features, or othersections of the newspaper or publication accounts or comments

which manifestly favor or oppose any candidate or political partyby unduly or repeatedly referring to or including therein saidcandidate or political party. Bowever, unless the facts andcircumstances clearly indicate otherwise, the Commission willrespect the determination by the publisher andor editors of thenewspapers or publications that the accounts or views publishedare signi"cant, newsworthy and of public interest.

#t is not easy to understand why (ection A was included at all in ResolutionNo. 2772. #n any case, (ection A should be viewed in the contet of ourdecision in &ational %ress Club v0 Commission on lections. % There the Court

sustained the constitutionality of (ection %b& of R.1. No.


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which fall outside the scope of (ection %b& and which are protected by theconstitutional guarantees of freedom of speech and of the press:

(econdly, and more importantly, (ection %b& is limited in itsscope of application. 1nalysis of Section 11 (b) shows that

it purports to apply only to the purchase and sale includingpurchase and sale disguised as a donation, of print space and airtime for campaign or other political purposes.Section 11 (b) doesnot purport in any way to restrict the reporting bynewspapers or radio ortelevision stations of news or news-worthy events relating to candidates, their !uali"cations, politicalparties and programs of government. 0oreover, Section 11 (b)does not reach commentaries and e3pressions of belief oropinion by reporters or broadcaster or editors or commentatorsor columnists in respect of candidates their uali.cations and programs and so forth, so long at least as such comments,

opinions and beliefs are not in fact advertisements for particularcandidates covertly paid for. #n sum, (ection %b& is not to beread as reaching any report or commentary or other coveragethat, in responsible media, is not paid for by candidates forpolitical o@ce. e read Section 11 (b) as designed to cover only paid political advertisements of particular candidates0

The above limitation in scope of application of (ection %b& ;that it does not restrict either the reporting of or the epressionof belief or opinion or comment upon the !uali"cations andprograms and activities of any and all candidates for o@ce ;

constitutes the critical distinction which must be made betweenthe instant case and that of Sanidad v0 Commission onlections. . . . 5 %Citations omittedJ emphasis supplied&

(ection A of Resolution No. 2772 appears to represent the e?ort of theComelec to establish a guideline for implementation of the above-!uoteddistinction and doctrine in &ational %ress Club an e?ort not blessed withevident success. (ection 2 of Resolution No. 2772-1 while possibly helpful,does not add substantially to the utility of (ection A of Resolution No. 2772. The distinction between paid political advertisements on the one hand andnews reports, commentaries and epressions of belief or opinion by

reporters, broadcasters, editors, etc. on the other hand, can realistically begiven operative meaning only in actual cases or controversies, on a case-to-case basis, in terms of very speci"c sets of facts.

1t all events, the Court is bound to note that $$# has failed to allege anyspeci"c a@rmative action on the part of Comelec designed to enforce orimplement (ection A. $$# has not claimed that it or any of its members hassustained actual or imminent in)ury by reason of Comelec action under


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(ection A. $ut a little di?erently, the Court considers that the preciseconstitutional issue here sought to be raised ; whether or not (ection A ofResolution No. 2772 constitutes a permissible eercise of the ComelecFspower under 1rticle #M, (ection > of the Constitution to

supervise or regulate the en)oyment or utili'ation of all franchiseor permits for the operation of ; media of communication orinformation ; for the purpose of ensuringO e!ual opportunity,time and space, and the right of reply, including reasonable,e!ual rates therefore, for public information campaigns andforums among candidates in connection with the ob)ective ofholding free, orderly honest, peaceful and credible elections ;

is not ripe for )udicial review for lac of an actual case or controversyinvolving, as the very lis mota thereof, the constitutionality of (ection A.

(ummari'ing our conclusions:

. (ection 2 of Resolution No. 2772, in its present form and as interpreted byComelec in its 22 0arch 889 letter directives, purports to re!uire printmedia enterprises to 6donate6 free print space to Comelec. 1s such, (ection2 su?ers from a fatal constitutional vice and must be set aside and nulli"ed.

2. To the etent it pertains to (ection A of Resolution No. 2772, the $etitionfor Certiorari and $rohibition must be dismissed for lac of an actual, )usticiable case or controversy.

BRD*R, for all the foregoing, the $etition for Certiorari and $rohibition is+R1NTI in part and (ection 2 of Resolution No. 2772 in its present formand the related letter-directives dated 22 0arch 889 are hereby (T 1(#Ias null and void, and the Temporary Restraining *rder is hereby 01I$R01NNT. The $etition is I#(0#((I in part, to the etent it relates to(ection A of Resolution No. 2772. No pronouncement as to costs.

&arvasa C0+0 %adilla $egalado 4avide +r0 $omero 'ellosillo elo %uno5itug 6apunan endo7a and 8rancisco ++0 concur0

9uiason +0 is on leave0

Footnotes

$etition, pp.


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= 1s #.1. Cru', Constitutional :aw, p. 98 %88 ed.&, citing Noblev. City of 0anila, See, in this connection, Cru', surpra note = at pp. >>->9. Thepolice power may be delegated by the legislative authority tolocal governments under the general welfare clause %(ection

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c61 Ppi vs. Comelec