ANACLETO D. BADOY, JR., PETITIONER, VS. JAIME N. FERRER, CHAIRMAN, CESAR MIRAFLOR, AND LINO M. PATAJO, MEMBERS, COMMISSION ON ELECTIONS, RESPONDENTS.

DISSENTING OPINION

BARREDO, J.:

I find it difficult to agree with
the Court’s holding that the provision in question is a reasonable
restraint of the freedom of the press guaranteed by the Constitution.  Indeed, touching as it does on the right of a
candidate in an election to campaign for his own victory, I regard this provision
more repugnant to the Constitution than those I have heretofore voted to strike
down as unconstitutional in the cases of Gonzales v. Comelec,
G.R. No. L-27833, April 18, 1969, 27 SCRA 835, and Imbong v.
Comelec, G.R. No. L-32432, September 11, 1970.

In the Gonzales case, I expressed
my position in regard to legislations of the nature of the one now before Us this wise:

“x x x 
Lest I be misunderstood, however, as being an ultra-activist, it
should be clear at the outset that in holding that the above prohibitions
contained in the statute in question are
violative of the Constitution, my stand is limited to my funda­mental conviction
that the freedoms of speech, of the press and of peaceful assembly and redress of grievances are absolute when they are being
exercised in relation to our right  to choose the men and women by whom we
shall be governed.  I hold neither candle
nor brier for licentious speech and press, but I recognize no power that can
pre-censor, much less forbid, any speech or writing, and any peaceful assembly
and petition for the redress of grievances, the purpose of which is no more
than to express one’s belief regarding the qualifications or lack
of them, the merits and the demerits of persons who are candidates for
public office or of political parties vying for power, as well as the
principles and programs of government and public service they advocate, to the
end that when voting time comes the right of suffrage may be intelligently and
knowingly, even if not always wisely, exercised. x x x.”  (27 SCRA 835, 924)

Withal,
since the election herein involved is that of delegates to the constitutional
convention called to amend the existing Constitution, the more it is imperative
that all the rights of all candidates and voters should be unrestricted and unimpaired.  We should decry the apparent lack of interest
exhibited by our people in past plebiscites held in connection with proposed constitutional amendments, as attested by the
comparatively low percentage of voters who have taken part therein, for in a
matter of such grave importance as the amendment of the fundamental law, it is naturally better that the stamp of approval or disapproval should be sufficiently reflective of the will of the greatest number possible.  Surely, the provision here disputed, does not improve the
situation.  Rather, it gives more reason
for people to shy away from the coming elections because it has increased the difficulties of the
means of communi­cation
between the
candidates and the electorate.

I
recognize the necessity of keeping electoral campaign practices within bounds that
will insure the
true expression of the popular will and generally, as I have manifested in past
opinions, to Congress
should be conceded the choice of the means that should be adopted
towards that end.  It is contended that
it is the purpose of the enactment in question to equalize, as much as
possible, the availability of the press, meaning newspapers, magazines and
other publications to all candidates as a means of campaigning, so that the rich candidates may not have undue advantage over the poor
candidates in the use of paid advertisements.

Without committing myself as to
the validity of such attempt at compulsory equality for all candidates, I do
not believe in imposing upon the rich candidates more restrictions on their
liberties, just because they are rich which is not a sin, than the limitation
of their expenses and those on their behalf to not more than P32,000.00.  Even if this limitation is in itself a little
questionable, considering its inadequacy due to the high costs of everything at
present, I am ready to yield in respect thereto, since it seems that a one-year-salary
limitation has been with us for such a long time already and may be considered
as already sanctioned and accepted by all to be more or less reasonable from
the point of view of its proportion to the emoluments of the office at
stake.  I cannot agree, however, that
beyond this, the candidates who can afford should be placed under other
restrictions with respect to the way they will spend the P32,000.00.  Worse, under the provision in question, a
candidate is not only restrained and regulated in the expenditure of his P32,000.00 by merely limiting the kind of advertisement or
publica­tion he may make on behalf of his candidacy.  Under the said provision, he is also
compelled to include in his propaganda, with equal prominence as his
own, the names of all his opponents. In other words, there is an ele­ment of
odious compulsion in this provision, for it makes it unlawful and punishable
with imprisonment and other accessory penalties, the failure of a candidate to
spend his own money to advertise with equal prominence the candidacy of his
adversaries whenever he advertises his own candidacy.  It is perhaps not far be­yond reasonableness
to restrict the advertisements of a candidate in the interest of remedying an
evil Congress may recognize, but it is to me clearly unreasonable, nay unjust
and oppressive, to compel a candidate not only to give quarters to his
adversary, but to practically help the latter by giving his name equal
prominence as his own.  It must be borne
in mind that the primary objective of a candidate in an election is to win over
his opponents and to require him, under pain of suffering imprisonment and/or
other penalties, to spend his own money in order precisely that his opponents
may be publicized with equal prominence as himself is, to my mind, an
intolerable infringement of one’s freedom to pursue a legitimate objective by
ordinarily lawful means.

Going to another consequence of
the enactment in question, it is a matter of public knowledge that there are hardly any paid advertisement or publications of candidates
in the newspapers.  (We need not mention
unpaid ones because one has to depend on the generosity of the publishers for
these.)  It is indeed understandable that
candidates should hesitate or refuse to submit themselves to the imposition of
the law.  The result is that there is
dearth of information regarding the candidates among the electors.  This is bad. 
As I see it, the application of the disputed provision is
producing a greater evil than the one purportedly being remedied.  In this connection, I would like to reiterate
what I said in the Gonzales case:

“x x x  I like to reiterate over and over, for it
seems this is the fundamental point others miss, that genuine democracy thrives
only where the power and the right of the people to elect the men to whom they
would entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, ‘The Philippines
is a republican state.  Sovereignty
resides in the people and all government authority emanates from them.’  (Section 1, Article II) Translating this
declaration into actuality, the Philippines
is a republic because and solely because the people in it can be governed only
by officials whom they themselves have placed in office by their votes.  And it is on this cornerstone that I hold it
to be self-evident that when the freedoms of speech, press and peaceful
assembly and redress of grievances are being exercised in relation to suffrage
or as a means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless.  If our democracy
and republicanism are to be worthwhile,
the conduct of public affairs by our
officials must be allowed to suffer
incessant and unabating scrutiny, favorable or
unfavorable, everyday and at all times. 
Every holder of power in our government must be ready to undergo
exposure any moment of the day or night, from January to December every year,
as it is only in this way that he can rightfully
gain the confidence of the people.  I have
no patience for those who would regard public dissection of the establishment
as an attribute to be indulged by the people only at certain periods of
time.  I consider the freedoms of speech,
press and peaceful assembly and redress of grievances, when exercised in the
name of suffrage, as the very means by which the right itself to vote can only
be properly enjoyed.  It stands to
reason, therefore, that suffrage itself would be next to useless if these
liberties cannot be untrammelled whether as to degree
or time.”

I cannot help but feel
apprehensive that with the restrictions and imposition laid down by Republic
Act 6132, the constitutional convention in which many pin their hopes for the
betterment of this country may not be as representative of the true will of the
majority of our people.  It is my
considered view that what We really need is not
curtailment of the rights of the candidates and voters but, on the contrary,
more freedom for all of them in order that there may be the maximum of
information regarding the qualifications and issues of the candidates.  Only then can We
hope to have better results in our elections. 
Again, I would like to reiterate the views I expressed in this regard in
the Gonzales case:

“My brethren view the problem be­fore Us
as one calling for the reconciliation of two values in our chosen way of life –
individual freedom, on the one hand, and public welfare, on the other.  I do not see it that way.  To my mind, if the freedoms of speech, press,
peaceful assembly and redress of grievances in regard to the right to vote cam
be impinged, if not stifled, by standards and limitations fixed by those who
are temporarily in power, I would regard those freedoms as no freedoms at all,
but mere concessions of the establishment which can be reduced or enlarged as
its convenience may dictate.  Of what use
can such kind of freedom be?

“Taking all circumstances into account, it is entirely beyond
my comprehension, how anyone could have conceived the idea of limiting the
period of electoral campaigns in this country, when what we need precisely is more intelligent
voting by the greater portion of our people. 
I do not believe our mass media have reached the degree of efficiency in
the dissemination of information needed to enable the voters to make their
choices conscientiously and with adequate knowledge of the bases of their
decisions.  I am not convinced that at
this stage of our national life we are already prepared to enjoy the luxury of
abbreviated electoral campaigns, unless we are inclined to forever have with us
the areas of political
bossism, apparent statistical improbabilities and politico-economic blocs and
even politico-religious control which we have in varying degrees
these days and which will naturally continue as long as our people are not
better informed about the individual worth of the candidates for or against
whom they vote.  I dare say that there is
enough reason to hold that if mistakes
have been committed by our people in the selection of their elective officials,
it is because the information needed to serve as basis for intelligent voting
have not fully reached all segments of the population.  Inadequacy of reliable information among the
voters, regarding the qualification of the candidates and the relevant
circumstances of the election they are taking part in can be the greatest bane
of popular suffrage.”

I do not find anything
objectionable in the portion of the provision which would enable all candidates
to take advantage of what is called Comelec space.  I believe this is a step in the right direction.  As to the rest, however, of Section 12 (F) of
Republic Act 6132, the provision in dispute, for the reasons stated above, I
vote to declare the same unconstitutional.

CONCURRING OPINION

CASTRO, J.:

I concur unreservedly in the above
concurring opinion of Mr. Justice Querube C. Makalintal.  I need only add that my concurrence is entirely consistent with the
essential views I articulated in Gonzales vs. Commission on Elections
(L-27833, April 18, 1969, 27 SCRA 900-901).

CONCURRING OPINION

MAKALINTAL, J.:

I concur in the views expressed by
Mr. Justice Felix V. Makasiar, but would add a few
observations of my own which, although of merely tangential bearing on the
strictly legal issues, I consider relevant in this case from a long-range
viewpoint.

The copious citations of American
authorities, particularly in one of the dissents, are undeniably of no little
persuasive force, our constitutional orientation being what it is, by reason
not only of the nature of the legal training dispensed in our law schools but
also of the practical aspects of our political and juristic experience.  But however steadfastly one might adhere to
the fundamental principles enunciative of individual
rights and liberties, as spelled out in almost identical terms in both the
American and Philippine Constitutions, I am not so sure that their traditional
and orthodox application in the United States should necessarily be binding upon us under all
circumstances.  Indeed even there the
events of recent years have demonstrated that the concept of personal liberty
can be so misread that its real significance all but disappears.  In not a few instances it has been invoked to
make a mockery of the administration of justice by the trial courts; to debase
the meaning of students’ academic freedom; to inspire violence and anarchy in
the streets and college campuses; and, in general, to contribute in no small
measure to a destructive divisiveness in a society that for hundreds of years
has maintained a stable if delicate balance between individual rights and civic
duties.

In the Philippines the same
principles have governed our lives, and insofar as civil relationships are
concerned have proven adequate and satisfactory.  But in the political field, more particularly
in connection with the conduct of elections and related activities, they have
failed to curb, if they have not indirectly abetted, the proliferating evils
that have long cried for relief, among them the hegemony of wealth, of
entrenched political organizations and dynasties, of terrorist groups, of
unabashed government patronage.  The law
that is here assailed as unconstitutional is a departure from the system that
has been tried so many times before and found wanting.  It is an experiment, to be sure; but it is
one which Congress, by virtue of its powers and its grasp of the problem
involved, has considered necessary to initiate; and I am not prepared to hinder
its efforts except upon the clearest showing that they not only regulate but
unjustifiably abridge individual rights and liberties.

It should be remembered that the
law in question has to do with the process of amending the Constitution, or
framing an entirely new one.  The task is
vital to the life of the nation, and has a character of permanence which is not
susceptible of change through periodic submission to the people.  The delegates to be elected for that task
will not represent regional districts in the political sense, nor particular
social segments or interests.  They stand
for ideas, for theories of government and civil society; and the purpose of the
law is to allow the people the freest possible choice, untrammeled by the many
election practices heretofore permitted whereby some candidates are placed at a
decided advantage because they have the logistics for effective political
campaign that are denied the others.

As Mr. Justice Makasiar
has stated in his opinion the challenged statute is pragmatic and empirical in
its approach to an old familiar problem; and considering how our traditional
electoral processes have failed to provide a solution, I am quite willing to
accept the trial and error method, even if we do adopt a more stringent
regulation of certain individual rights as long as such regulation is within
permissible limits, which I am convinced it is in this case.

DISSENTING OPINION

TEEHANKEE, J.:

The holding of periodic elections constitutes the very foundation
of a republican form of government such as ours.  And it has aptly been remarked that “the
measure of success of a democratic system is found in the degree to which its
elec­tions really reflect rising discontent before it becomes unmanage­able, by
which government responds to it with timely redress, and by which losing groups
are self-disciplined to accept election results.”^[1]

An election is the most elemental and direct act and parti­cipation
of the citizen in the conduct of government. 
Political power is thus entrusted by him, in concert with the entire
body of the electorate, to the leaders who are to govern the nation for a
specified period.  It has thus been
universally postulated that it is the government’s bounden duty to see to it
that the elections are free and honest and that the voter is free from fraud,
force and corruption so that the choice of the people is freely expressed and
recorded and “the ballot box, the just index of public opinion.”^[2]
And since “many things are prerequisites to elections or may affect their
outcome – voters, education, means of transportation, health, public
discussion, x x, private animosities, even the face
and figure of the candidate(s)”^[3]
the fullest and freest discussion of men and issues, through assembly,
association and organiza­tions, both by the candidate and the voter, has
likewise been universally conceded as an indispensable condition for free and
honest elections.  This of course
includes the fullest and freest discussion in all the media for public
information:  the press, since “the
freedom of written (or printed) speech is (no) less protected .. than
the freedom of spoken words”^[4]
and the mo­dern media of radio, television and movies, since “these days
free speech includes more than talk to a crowd from a platform.”^[5]

The Chief Justice, emphasizing the need for the electorate to be
informed of the specific measures and issues based upon concrete proposals for
constitutional reforms rather than general­izations, that a candidate for
delegate to the forthcoming Consti­tutional Convention intends to espouse, as
well as of the interests that he represents, has observed that “(I)t is
vitally important for the electorate to know, before the election of delegates,
what, in particular, are the specific measures each candidate proposes to
champion in the convention.  The people
should not be content­ed with generalizations. 
They should not be satisfied with broad statements about advancing the
well-being of the collectivity, ridding the government of graft and corruption,
promoting efficiency and economy, and the other abstractions of similar nature.  Nor is it enough that a candidate be honest,
patriotic and learned.  The school of
thought to which he belongs, the interests he repre­sents, and the precise
amendments he stands for, should count heavily in the choice of delegates.  Each candidate should, there­fore, raise
issues based upon concrete reforms he intends to espouse.  He should explain to the voters why they
ought to back him up in supporting such reforms.  In this manner, he would help the people make
up their minds on particular questions.”^[6]

Without freedom to circulate, through the public media of
information and within the legally permissible limit for cam­paign
expenditures, a candidate’s qualifications and specific platform as well as to
denounce the deficiencies and defects of an opponent and his program, the constitutional
rights of both the candidate and the voters to free expression and free press
are abridged and they are deprived thereof without due process.

I am constrained, therefore, to dissent, with due respect, from
the main opinion that sustains the constitutionality of the challenged
provisions of section 12(F) of the 1971 Constitutional Convention Act.

1.  The challenged section
decrees it to be “unlawful” and “a serious election offense
carrying a penalty of imprisonment of not less than one year and one day but
not more than five years” and disqualification from public office and
deprivation of suffrage from one year to nine years^[7]
— outside of “Comelec space,” “to
print or publish, or cause to be printed or published, any ad­vertisement, paid
comment or paid article in furtherance of or in opposition to the candidacy of
any person for delegate, or men­tioning the name of any candidate and the fact
of his candidacy, unless all the names of all other candidates in the district
in which the candidate mentioned is running are also mentioned with equal
prominence.”  As far as the writer
knows, such a statute that would so stifle and curtail the people’s right to
free political discussion and to manifestly, publicly and actively support one
candidate as against another is totally without precedent the annals of
republican governments.  This alone
should give us pause.

2.  The additional
restrictions and strictures in the statute “to preserve suffrage pure and
undefiled and to achieve the desired equality of chances among all the
candidates”, cited in the main opinion as “more than compensating for
the minor limitation on the freedom of expression of an individual” by the
challenged section, viz,

— a ban on election propaganda and posters other than on a free
“Comelec billboard” supposed to be
allocated by lottery by the Comelec among the
candidates, which bill­board has proved to be so inutile that the Comelec itself declared its abandonment thereof;

— a ban on radio and TV publicity other than on free “Comelec time” from each radio broadcasting and
television station of from one to two hours a week “but not oftener than
every other day”^[8]
likewise allocated by lottery by the Comelec, which
time amounts to sporadic four-minute spots where the candidates are at times
constrained to race against the shortness of the allotted time and to alienate
the listening and view­ing audience with barren slogans and platitudes;

— a ban on any candidate’s appearance on any interview or program,
unless all other candidates in the district are also invited to appear;^[9]

— a total ban against all political party or orga­nized group
support or assistance, “whether material, moral, emotional or
otherwise,”^[10]
so much so that no two candidates in the same district are permitted to campaign
together;

— a total ban on all other forms of propaganda and literature
(other than 8-1/2″ x 14″ pamphlets or leaflets and handwritten or
printed letters containing data and qualifications relevant to one’s candidacy)^[11]
so much so that a candidate cannot place a poster announcing his candidacy
“even on the outside walls of his house “;^[12]

— a total ban on radio and TV stations, movie houses or theaters
showing, displaying or giving any advertising or propaganda to any candidate;^[13]
and

— a total ban on radio and TV stations scheduling any program or
permitting any sponsor “to manifestly favor or oppose any candidate by
unduly referring to him or including him in its programs or newscasts;”^[14]

far from being “so narrow as not to
affect the substance and vital­ity of (the) freedom of expression itself”,
to my mind, oppress­ively and unreasonably strait-jacket the candidates as well
as the electorate and gravely violate the constitutional guaranties of freedom
of expression, freedom of the press and freedom of association, and deny due
process and the equal protection of the laws.

3.  As to the specifically
challenged provision of Section 12 (F) of the Convention Act outlawing the
recourse to and use of paid newspaper space and other print media outside
“Comelec space”, by any one, whether he be
a candidate or not, to promote or oppose the candidacy of any person for
delegate to the Convention, without mentioning with equal prominence the names
of all other candidates in the district concerned, it should be stated that at
the hearing of the cases at bar, respondents chairman and members of Comelec acknowledged that their tentative arrangements with
newspapers, magazines and periodicals publishers to provide free “Comelec space” to be allocated equally among all the can­didates,
with a maximum space of twenty (20) words for each can­didate stating his
bio-data or constitutional amendment proposals had fizzled out, since there was
just not that much free space for candidates totalling
close to 3,000 and that the final arrangement was that the newspapers and
periodicals would publish just the names of the candidates “as
often as they can”.

And so comes the petitioner in a plight typical of the over­whelming
majority of the earnest candidates who wish to serve as delegates — unknown
and without previous public exposure, alone and without support of any
political party or machine or political leader but perhaps worthy and deserving
— who wants to actively pursue his candidacy and asks only that he be given an
opportunity to equalize his chances by being allowed, within his means and the
means of those who have faith in him, to make use of the modern media of mass
communications (the press, radio and TV) to make known to the hundred thousand
or so voters of his province his candidacy and his proposals and to try to win
their votes within the short span of two months that the Act has given him to
campaign before the election scheduled for Novem­ber 10 this year.  He complains of the denial of his and the
people’s constitutional rights of free expression and free press.  But he is told that he may only campaign and
solicit the people’s votes in person (and through the members of his family
within the fourth civil degree of consanguinity and affinity and his per­sonal
campaign staff limited to one person for every ten pre­cincts of the over 1,000
precincts spread throughout his province) as during the horse-and-buggy era of
old; that if he wants to buy newspaper space, he must also buy space for his
opponents and mention them with equal prominence; that he is totally barred
from buying any radio, TV, or movie theater time; and that all this is to
enhance his “Parity of chances in winning the election.'”

4.  The challenged provision
according to the main opinion, would ban a publisher who is not a natural
person but “a juridical person or an organized group of persons of
whatever nature, whether in the business of publishing a newspaper,
magazine or periodical only for the particular election or not,” from
publishing “any advertisement or article .. for or against any
candidate, paid or unpaid by said publisher” since it “is
prohibited as an organized group support under paragraph 1 of Sec. 8 (a) of
R. A. No. 6132.^[15]  Under this constricted view of the main
opinion, only publishers who are natural persons may on their own
publish paid or unpaid articles for or against any candidate; the great
majority of publishers, who are juridical persons – since in this modern age of
corporations, publishers generally incorpor­ate to facilitate the doing of
business as well as to avoid personal liability in libel suits — may not do
so, because of the Act’s all-encompassing taboo on organized group
support.  Only individuals, i.e. natural
persons, may cause the publication of unpaid com­ments or articles for
or against any candidate, assuming that notwithstanding the keen everyday
competition for space, they succeed in exercising some special charm on the
editors to accom­modate their unsolicited contributions.  Freedom of the press is indeed sorely tried
under such strictures.

5.  Yet, the main opinion
acknowledges that Congress did not and could not impose on publishers of
newspapers, magazines and periodicals the duty to allocate free Comelec space, since such compulsion “would be an
undue abridgment of the publisher’s own freedom.”  It would seem to be just as grave an
abridgment of the preferred freedoms of free speech and free press to deny to
the people, whether acting individually or in concert as a group, as well as to
the individual candidates who should not be interdicted these freedoms by
virtue of their candidacy, the right and liberty of free access to the press
and the right to appeal to public opinion through its wide circulation among
the people upon payment of the customary rates for the space.

6.  Coming to the
constitutional tests of the validity of these statutory restrictions, the main opinion,
reiterating the holding in the recently decided cases of Imbong
and Gonzales,^[16]
jus­tifies the Convention Act’s abridgment of the freedoms of expres­sion,
press and association as valid limitations in the State’s exercise of its
police power, “to prevent a clear and present danger of the perversion or
prostitution of the electoral appara­tus and of the denial of the equal
protection of the laws,” and applying the balancing-of-interests
criterion, declare that the “all important substantive interests of the
State to preserve the  purity of the
ballot and to render more meaningful and real the guarantee of the equal
protection of the laws” far outweigh the “restrictions on the invaded
freedom (which) is so narrow that the basic liberty remains.”^[17]

The premises upon which the main opinion is based, as gleaned
from its pronouncements and those in Imbong-Gonzales,
may thus be restated:

— Excessive partisan activities and participa­tion of political
parties present a clear and present danger of debasement and prostitution of
the electoral process;^[18]

— The ban against all party or other organized support is to avert
the clear and present danger of another substantive evil, denial of the equal
protection of the laws – the candidates must be assured equal protection of the
laws by according them equality of chances;^[19]

— Candidates must therefore “depend on their individual
merits and not on the support of political parties or organizations”;^[20]

 — Civic associations other
than political parties must likewise be banned, because if exempted, they would
“utilize the facilities of the campaign machine­ries which they are denying
to political parties”, not­withstanding that when they “engage in a
political act­ivity to that extent it partakes of the nature of a political
organization”;^[21]

— Recent political history and experience show that “the
victory of an independent candidate mainly rests on his ability to match the
resources, financial and otherwise, of the political parties or organizations
supporting his opponent”;^[22]

— Political parties and other organized groups have built-in
advantages because of their machinery and other facilities which the individual
candidate who is without any organization support, does not have, and the law
therefore bans their participation “to attain real equality of chances
among individual candidates;”^[23]

— The delegates must “be independent, beholden to no one but
to God, country and conscience . . . dele­gates who, because they have been
chosen with the aid and resources of organizations cannot be expected to be
sufficiently representative of the people (and) could very well be the
spokesmen of narrow political, reli­gious or economic interest and not of the
great majority of the people;”^[24]

— “The evident purpose of the limitation on the freedom of
the candidate or sympathizers to spend his own money for his candidacy alone
and not for the fur­therance of the candidacy of his opponents (by requir­ing
mention with equal prominence in newspapers, ads or paid articles of all other
candidates) is to give the poor candidates a fighting chance in the
election;”^[25]
and

— Under the Convention Act, “If the candidate omits the name
of his opponents he is guilty of decep­tion, which nullifies his right to enjoy
the liberty he invoked for himself.”^[26]

7. It is respectfully noted
that the above-cited premises of the main opinion are vitiated by erroneous
assumptions and conceptions, the validity of which may be questioned as
follows:

— Would the banning of political parties and all other
organizations in the election purify electoral pro­cess – when the self-evident
reality, as pungently ex­pressed by Senator Tañada is
that “Man is by nature gregarious, by instinct and necessity predisposed
to form societies with other men to attain in concert with them the various
goals or ends of his existence which individually they cannot achieve?”^[27]

— “Without organizations like the Masonic Lodge, the La Liga Filipina and the Katipunan,
we will not today be a nation. And, without that grand old Nacionalista
Party of Quezon and Osmeña,
the predecessor of the present Nacionalista and
Liberal Parties, we would not be independent” was the answer of Sen. Diokno,^[28]
who added tersely that “It is not political parties that make elections
crooked.  It is crooked politicians.  And by eliminating political parties, you
strengthen the crooked politicians because you take away the moral influence,
if not actual influence of the party leaders to keep in check the abuses of
crooked politicians;” conveying the implied suggestion that the proper
remedy is the elimination at the polls of the power and evil influence of the
crooked politician.

— Are not political parties a necessity in any republican form of
government, and as pointed out by Senator Diokno,
“it is only where political rights are denied to the people that political
parties are extinguished”^[29]
with the consequent elimination of all political opposition and the emergence
of authori­tarianism?

— Would the ban against all party or other orga­nized support
accord the candidates equality of chances, when as is commonly known, in many
provinces it is the so-called political kingpins who control politics, the
party just being a convenient vehicle as witness the constant party switching
after every national election, and as conceded by Senator Tolentino
at the Imbong-­Gonzales hearing, these
political kingpins would con­tinue to assert their influence, in their
individual ca­pacity, in the election?^[30]

— Would not the ban against all party or organiza­tion
participation create a political vacuum that would render invincible the
position of local political kingpins with their personal political machines and
followers?

— Would it not be illusory to decree by fiat that candidates
depend on their individual merits without party or organized support, when it
is precisely by gaining the support of effective and non-partisan organizations
that non-moneyed independent candidates may secure the resources, facilities
and organized action to overcome the superior financial resources of their
opponents?  For as pointed out by Senator
Tañada, “a common man without organization has
no chance against political leaders” and the organization ban would
deprive the common man, the laborers and the farmers “of the very tools
they need to elect their delegates.”^[31]

— Is organized political activity of civic associa­tions and non-political
organizations to be considered tainted, such as to justify their being banned
from the election as becoming pro-tanto
“political organizations” when elections are nothing if not a political
process and activity wherein the people, singly and collectively, make known
their sovereign will?

— Are not political parties and civic organiza­tions the best
instruments devised and evolved by the wit, knowledge and experience of men to
equalize opportunities and situations and to off-set the “built-in advantages”
of men of wealth and fortune, power and prestige, name and fame?

— Even among the so-called non-partisan or independent candidates
themselves, do not some enjoy “built-in advantages” as against the
others, be they educational, material or moral, spiritual or physical?    

— If a candidate cannot secure the active support of a political
party or responsible civic organizations or the leaders thereof individually,
would it be reasonable to expect that he could win the elec­tion all by
himself?

— Is not the fact that as indicated by Senators Tañada and Diokno the loud and
persistent clamor of organizations brought about the amendment to the
Convention Act banning political parties from the election, the best proof of
the necessity and effect­ivity of organizations?

— Does it not cast an unfair reflection on the integrity and
patriotic sense of duty of the delegate to require that he be elected
“beholden to no one” because he cannot be expected to be sufficiently
representative of the people and would be bound by narrow political, religious
or economic interests if elected with the aid and resources of organizations?

— Is it not preferable, as asked by Senator Tañada
that rather than have a convention of ostensibly uncom­mitted delegates, that
the candidates “present themselves to the people with definite views in mind
which the elec­torate would assess and evaluate, accept or reject, by electing
or not electing the candidate expressing these views” for “the
essential strength of the representa­tional approach to politics and government
is exactly this — that from a confrontation of opposing interests and opinions
in a free forum what usually emerges is what is best for the largest
number”?^[32]  Is this not after all what the constitutional
system means, as stated by Senator Pelaez, sponsor of
the Act, — “to encompass all the interests that exist within our society
and to blend them into one harmonious and balanced whole”?

— May the right of the candidate and of his sup­porters to
purchase legitimate press space promoting his candidacy be so constricted as to
require them in effect to also espouse his opponents’ candidacies under pain of
severe penal sanctions?

8.  If it be conceded that
the premises of the main opinion are based on erroneous assumptions and
conceptions as sought to be shown above, its conclusions justifying the
Convention Act’s infringement of the basic freedoms as being within the scope
of the State’s police power are necessarily vitiated by the same errors.  This observation is reinforced by the
established facts that the evils sought to be averted by the Act were
perversion or prostitution of the electoral process by undue domination of the
election by the political parties and by all other forms of organi­zations and
denial of equal protection of the laws to the non-moneyed independent
candidates who would not have a fighting chance against candidates of the
“establishment” (i.e. the political parties and all other
organizations).  For the measures in
question, far from suppressing these evils, would foment them by denying non­political”
candidates the very freedoms of effectively appealing to the electorate through
the public media and of being supported by organized groups that would give
them at least a fighting chance to win against candidates of the political
kingpins.

9.  I do not believe that
the main opinion’s anchoring of its ruling on the “clear-and-present
danger” criterion is tenable under the circumstances.  The trouble is, as Professor Freund well put
it, “that the clear-and-present-danger test is an oversimplified judgment
unless it takes account also of a number of other factors: the relative
seriousness of the danger in comparison with the value of the occasion for
speech or political activity; the availability of more moderate control than
those which the state has imposed; and perhaps the specific intent with which
the speech or activity is launched. No matter how rapidly we utter the phrase
‘clear and pre­sent danger’, or how closely we hyphenate the words, they are
not a substitute for the weighing of values. 
They tend to convey a delusion of certitude when what is most certain is
the complexity of the strands in the web of freedoms that the judge must
disentangle.”^[33]
I subscribe to the views expressed last year by Mr. Justice Castro in Gonzales
vs. Comelec,^[34]
that “(H)owever useful the ‘clear and present
danger’ formulation was in the appraisal of a specific type of situation, there
is fairly extensive recognition that it is not a rule of universal
applicability and validity, not an automatic mechanism that relieves a court of
the need for careful scrutiny of the features of a given situation and
evaluation of the competing interests involved” and that the “clear
and present danger” test has “minimum relevance to our task” of
appraising the provisions of election statutes, such as Republic Act 4880 in
that case, which outlaws prolonged election cam­paigns and electioneering, and
Republic Act 6132 in the cases at bar, since “(T)his kind of
constitutional testing would involve both specula­tion and prophecy of a sort
for which this Court x x x
has neither the inclination nor any special competence.”

10.  I would state further,
with Mr. Justice Castro’s indulgence, that applying the various factors of the
“balancing­-of-interests” criterion as synthesized by him in Gonzales,
supra, to wit,

‘Although the urgency of the public interest sought to be secured
by Congressional power res­tricting the individual’s freedom, and the social
importance and value of the freedom so restricted, ‘are to be judged in the
concrete, not on the basis of abs­tractions,’ a wide range of factors are
necessarily relevant in ascertaining the point or line of equilibrium.  Among these are (a) the social value and
importance of the specific aspect of the particular freedom restrict­ed by the
legislation; (b) the specific thrust of the res­triction, i.e., whether the
restriction is direct or indirect, whether or not the persons affected are few;
(c) the value and importance of the public interest sought to be secured by
legislation — the reference here is to the nature and gravity of the evil
which Congress seeks to prevent; (d) whether the specific restriction decreed
by Congress is reasonably appro­priate and necessary for the protection of such
public interest; and (e) whether the necessary safeguarding of the public
interest involved may be achieved by some other measure less restrictive of the
protected freedom.

the main opinion’s conclusion that the
State’s objectives of preserv­ing the purity of the ballot and achieving the
desired equality of chances among all the candidates warrant in balance the
abridg­ment of the basic liberties falls short of satisfying the require­ments.

11. It is axiomatic that the highest of motives and the best of
intentions are not enough to displace constitutional obs­tacles.  The Act’s bans here are so broad, and
encompassing against political activity for or against a candidate by any
“poli­tical party, political group, political committee, civic,
religious, professional, or other organization or organized group of what­ever
nature.”^[35]
There are so many technical prohibitions against organized group
activity, denying man’s very nature, and so much emphasis on individual action
that two or more candi­dates and their 4th degree relatives and personal campaign
staffs are enjoined by Comelec from deliberately and
regularly campaigning together or joining and mutually supporting each other,
under the severe penal sanctions prescribed by the Act.  The ban against party or organized group
support, far from equal­izing the candidates’ chances, leaves a vacuum which
the local political leaders as individuals readily fill, and the candidates are
left with no choice but to seek the support of the political leaders which
makes a mockery of the desideratum that the candidates should be
“beholden to no one.”  The bans
against free access to the press instead of equalizing chances, leave the
candidates helpless in promoting their candidacy and petitioner has come to
Court for the removal of such bans so that precisely he may have a fighting
chance.  The tragedy of it is that the
bans are so unrealistic, “arbitrary, irrational and fascistic” in the
words of Senator Tañada^[36]
and fail futilely to accomplish the objectives of the Act, whereas the Act does
contain a valid and effective limitation that “(T)he total expenditures
made by a candidate or by any other person with the knowledge and consent of
the candidate shall not exceed thirty-two thousand pesos”, which, if
properly implemented, would check the very evils that the Act seeks to avert.

12. The basic and crucial test that the Act fails to pass is the
constitutional test of reasonableness required by the due process clause.^[37]
Due process limits the sweeping scope of the police power of the State and ‘forbids
governmental action that is unreasonable and arbitrary, or opposed to the
community’s sense of fair play or to principles of liberty and justice, or not
in harmony with a scheme of ordered liberty.”^[38]
The mea­sure which is sought to be justified as falling within the police power
should bear a reasonable relation to the proper govern­mental object and should
not go so far beyond the necessity of the case as to be unreasonable,
oppressive and arbitrary.  This is not to
encroach upon the field of legislative policy but simply with the premises and
circumstances known to all, to enforce the requirements of due process that the
challenged provisions of the Act in question bear some rational or substantial
relation to the public welfare sought to be achieved, in order to justify the
abridgment of the basic freedoms of expression, press and association.  The Convention Act, to my mind, plainly fails
the test.  The means employed and the
strictures decreed strongly tend to defeat, rather than promote, the very
objectives of the Act of preventing perversion of the electoral process and
“maximizing, if not approximating, equality of chances among the various
candidates.” So enervating are the provisions and effects of the Act that
earnest candidates are left without recourse to question the candidacies of
nuisance candidates bearing the same surnames reportedly put up by their
opponents.

13. Suppression of free, open and public discussion of men and issues,
particularly in times of elections, goes against our traditions of liberty and
freedom.  The Tañada
Election Period Law (Republic Act 4880) cited in the main opinion was upheld by
the Court in Gonzales as a valid exercise of the police power in its banning
of year-round prolonged election campaigns and electioneering, and limiting the
campaign period to 120 days immediately preceding a national election.  The measure was directly in furtherance of
the governmental objective of prevent­ing the harmful effects on the public
interest of an excessive and prolonged preoccupation with partisan political
activities, although a majority of the Court voted against the validity of the
Act’s spe­cific provisions against the making of speeches for or against any candidate
during the prohibited period, etc. as being too ambi­guously and broadly drawn
to safeguard adequately the basic li­berties affected.  The provisions of the Tañada
Election Period Law were basically concerned with a limitation of the period of
the election campaign and in no way trenched upon the freedoms of the people
and the candidates in the pursuit of their election campaign nor prohibited all
party or organized group support, as does the Convention Act.

Let there be the fullest debate and discussion of the merits of
the candidates and the issues.  Let there
be open support by political parties and organized groups of the candidates of
their choice, so that the people may know who is supporting whom, instead of
the present enforced silence and ignorance. 
If the people are disillusioned with the political parties and with poli­ticians
in general, as was aired in the debates on the Senate floor deliberations on
the Act, it is their right to know who are the machine-backed candidates, so
that they may vote them down as in the past. 
Let there be freedom, within the permit­ted limits of campaign
expenditures which should be strictly enforced against the candidate
publicized, for all to extol the merits of the candidates they support or to
denounce the lack of merits of the candidates they oppose, so that the people
may be enabled to freely and knowingly exercise their sovereign will. To
paraphrase Brandeis,^[39]
among freemen, the deterrents ordinarily to be applied to prevent election
excesses are educa­tion and punishment for violations of the law, not
abridgment or sterilization of the rights of free speech, free press and free
association.

14. The present election for delegates who will rewrite or amend
our Constitution is of the greatest significance and it is vital that the
people take the greatest interest and enjoy the fullest freedom to know the
candidates, their concrete proposals for amendments and the interests that
support them.  Thus the delegates elected
may be worthy of the people’s trust and after their work is done, may say, as
Recto did in 1935, that “it was as perfect as any human institution can
hope to be perfect” with the injunction that “We are the Constitution
in the sense that it can live only in us, through us, for us, and because of
us.” The fact that the office of delegate to the Constitutional Convention
is non-contentious in the sense that opposing candi­dates for national or local
offices are, does not warrant “experimenting” in the present election
with the people’s basic liber­ties for possible adoption for future elections,
as manifested at the hearing hereof.

For those who have enjoyed the stillness of the present non
campaign, I would recall the words of the late Woodrow Wilson who said:  “I have always been among those who
believed that the greatest freedom of speech was the greatest safety, because
if a man is a fool, the best thing to do is to encourage him to advertise the
fact by speaking.  It cannot be so easily
dis­covered if you allow him to remain silent and look wise, but if you let him
speak, the secret is out and the world knows that he is a fool.  So it is by the exposure of folly that it is
defeated; not by the seclusion of folly, and in this free air of free speech
men get into that sort of communication with one another which constitutes the
basis of all common achievement.”^[40]

The restrictions in Republic Act 6132 discussed in para­graph 2
hereof, together with the provision of section 12 (F) thereof directly
challenged in the cases at bar, are in my opinion inextricably linked in their
violation of the Constitution.  I there­fore
vote for their exclusion from the statute.

^[1] Jackson,
Struggle for Judicial Supremacy, 316.

^[2]
Story, Miscellaneous Writings, 158.

^[3]
McReynolds, Newberry vs. U. S.
256 U. S. 232,
257.

^[4] Holmes,
Leach vs. Carlile, 258 U.
S. 138, 140.

^[5]
Douglas, We the Judges, 319.

^[6]
“The Constitution, Its Amendments and the Rule of Law”, address
delivered by the Chief Justice on Constitution and Recto Day, February 9, 1970, prior to the
enactment on August 24, 1970
of Rep­ublic Act 6132.

^[7]
Sec. 18, Rep. Act 6132.

^[8]
Sec. 12, (B), Rep. Act 6132.

^[9]
Sec. 12 (E), idem.

^[10]
Sec. 8 (A) par. 1, idem; Imbong vs. Ferrer and Gonzales vs. Comelec,
L-32432 and L-32443, Sept. 11, 1970.

^[11]
Sec. 12 (C) idem.

^[12] Comelec Election Guide to the 1971 Constitutional
Convention.

^[13]
Sec. 12 (E), Rep. Act 6132.

^[14]
Sec. 12 (H), idem.

^[15]
At page 3, citing Imbong and Gonzales,
see fn. 10.

^[16] Supra,
fn. 10.

^[17]
At page 3 and 12, main opinion.

^[18] Imbong-Gonzales decision, at p. 11.

^[19] Idem,
at p. 12.

^[20] Idem.

^[21] Idem,
at p. 15.

^[22] Idem,
at p. 12.

^[23] Idem,
at p. 14.

^[24] Idem.

^[25]
Main opinion, at p. 5.

^[26]
Main opinion, at p. 13.

^[27]
See Senate speech of Senator Tañada against amend­ment
of S. B. No. 77 on July 15, 1970.

^[28] See
Senate speech of Senator Diokno against amendment of
S. B. No. 77 on July 16, 1970.

^[29]
See fn. 28.

^[30]
Dissenting opinion of Justice Fernando in Imbong­-Gonzales.

^[31]
See fn. 27.

^[32]
See fn. 27.

^[33]
On Understanding the Supreme Court, 27-28.

^[34]
L-27833, April 18, 1969; 27
SCRA 835, 898-901.

^[35]
Sec. 8 (A) first par. R. A. 6132.

^[36]
See fn. 27.

^[37]
“Sec. 1.  (1) No person shall be
deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.” Art. III, Phil.
Constitution.

^[38]
2 Tañada and Carreon,
Political Law of the Phil. 7-8.

^[39]
Concurring op., Whitney vs. California,
274 U. S. 356,
377.

^[40]
2 Wilson’s Selected Literary and
Political Papers and Addresses, 333.