Social Weather Stations, Inc. and Pulse Asia, Inc. vs. Commission on Elections

The disclosure requirement under Section 5.2(a) of the Fair Election Act includes subscribers to election surveys as they constitute persons who "paid for" the survey; such regulation is a valid exercise of police power that promotes political equality and does not constitute prior restraint or violate the constitutional prohibition against the impairment of contracts, but COMELEC cannot validly prosecute petitioners for violation thereof due to procedural defects in the Resolution's promulgation and enforcement.

Social Weather Stations, Inc. (SWS) and Pulse Asia, Inc. are private firms engaged in social research and public polling, including the conduct of pre-election surveys. During the 2013 senatorial election campaign, SWS published findings from a pre-election survey conducted from February 15 to 17, 2013, regarding voters' preferences. Following a complaint by a political party alleging non-compliance with disclosure requirements, the Commission on Elections issued Resolution No. 9674 on April 23, 2013, directing survey firms to submit the names of commissioners, payors, and subscribers of published surveys.

• SWS conducted a pre-election survey from February 15 to February 17, 2013, asking voters about their preferences for senatorial candidates, and subsequently published the findings.
• Representative Tobias M. Tiangco, Secretary-General of the United Nationalist Alliance, wrote to COMELEC on March 20, 2013, requesting that SWS be compelled to disclose the identities of persons who paid for and subscribed to the survey, alleging violation of the Fair Election Act and COMELEC Resolution No. 9615.
• SWS had previously replied to Tiangco's letter furnishing particulars about the survey but declined to disclose the identities of commissioners or subscribers.
• COMELEC En Banc issued an Order dated April 10, 2013, setting the matter for a clarificatory hearing on April 16, 2013.
• On April 23, 2013, COMELEC issued Resolution No. 9674 directing SWS, Pulse Asia, and other survey firms to submit within three days from receipt the names of all commissioners, payors, and "subscribers" of surveys published from February 12, 2013 to the date of promulgation.
• Resolution No. 9674 provided that it shall take effect "immediately after publication" and that violation shall constitute an election offense.
• Petitioners alleged they were never furnished copies of Resolution No. 9674 prior to filing their petition; they only secured a certified true copy to comply with Rule 65 requirements.
• On April 30, 2013, petitioners wrote to COMELEC Chairman Brillantes informing him they had not received a copy of the Resolution and requesting deferment of enforcement.
• On May 8, 2013, the COMELEC Law Department issued a Notice directing petitioners to submit the list of names and warning that failure to comply shall constitute an election offense punishable under the Omnibus Election Code.
• On July 1, 2013, COMELEC issued a Subpoena notifying petitioners of a criminal complaint (E.O. Case No. 13-222) for violation of Section 264 of the Omnibus Election Code in relation to RA 9006, directing them to appear and submit counter-affidavits.
• Petitioners claimed they were never informed that a criminal case had been filed against them nor furnished copies of the relevant criminal complaint.

• Resolution No. 9674 is ultra vires because the Fair Election Act only requires disclosure of those who "commissioned or paid for" a specific survey, not "subscribers" who pay for general access to survey results.
• The Resolution creates an election offense where none existed before, exceeding COMELEC's authority.
• The disclosure requirement constitutes prior restraint that curtails petitioners' free speech rights and will discourage clients from subscribing, rendering survey firms financially unsustainable.
• Resolution No. 9674 violates the constitutional prohibition against the impairment of contracts because it forces petitioners to disclose confidential information protected by existing contracts with subscribers.
• The Resolution's provision that it shall take effect "immediately after publication" violates Section 13 of the Fair Election Act, which mandates that rules take effect on the seventh day after publication; thus, the Resolution was not yet in force when petitioners were required to comply.
• COMELEC violated petitioners' right to due process by failing to serve them with copies of Resolution No. 9674 and the criminal complaint subject of E.O. Case No. 13-222, and by refusing to specify the election offense under which they were being prosecuted.

• COMELEC has "wide latitude of discretion" under the Constitution to enforce and administer all laws relative to the conduct of elections.
• As the specialized constitutional body charged with enforcing election laws, COMELEC's contemporaneous construction of Section 5.2(a) of the Fair Election Act is entitled to great weight and respect.
• Section 5.2(a) draws no distinction between direct payors and indirect payors; "subscribers" are included in those who "paid for" the survey.
• Requiring disclosure of subscribers addresses the requirement of reporting election expenditures by candidates and political parties, thereby ensuring fair elections.
• The regulation is a valid exercise of police power that promotes political equality and does not violate free speech; it is not prior restraint because the disclosure requirement kicks in only upon, not prior to, publication.
• The non-impairment clause must yield to the loftier purposes of the government; contracts must be understood to have been made in reference to possible exercise of COMELEC's regulatory powers.
• The seven-day effectivity period in Section 13 applies only to Resolution No. 9615 (the IRR), not to Resolution No. 9674 which merely enforces Section 26 of Resolution No. 9615; in any event, the issue is moot because the seven-day period had already lapsed.
• Petitioners were given fair notice of the Resolution through the May 8, 2013 Notice which reproduced the dispositive portion and warned of the election offense penalty.

• Procedural Issues:
  • Whether Resolution No. 9674 was validly promulgated in accordance with the effectivity requirements of Section 13 of the Fair Election Act.
  • Whether COMELEC deprived petitioners of due process by failing to serve them with copies of Resolution No. 9674 and the criminal complaint, and by refusing to specify the election offense.
• Substantive Issues:
  • Whether Resolution No. 9674 is invalid for requiring disclosure of names of "subscribers" not covered by Section 5.2(a) of the Fair Election Act.
  • Whether the disclosure requirement violates petitioners' rights to free speech.
  • Whether Resolution No. 9674 violates the constitutional proscription against the impairment of contracts.

• Procedural:
  • Resolution No. 9674 was promulgated in violation of Section 13 of the Fair Election Act, which requires rules and regulations to take effect on the seventh day after publication in at least two daily newspapers of general circulation, not immediately after publication.
  • COMELEC violated petitioners' right to due process by failing to serve them with copies of Resolution No. 9674 itself; service of a Notice reproducing only the dispositive portion is insufficient to trigger the compliance period.
  • COMELEC also violated due process by failing to provide petitioners with copies of the criminal complaint subject of E.O. Case No. 13-222.
  • Consequently, the three-day compliance period under the Resolution never commenced, and there was no basis for considering petitioners to have committed an election offense; COMELEC is enjoined from prosecuting petitioners for their supposed violation of Resolution No. 9674.
• Substantive:
  • Resolution No. 9674 is valid. Section 5.2(a) of the Fair Election Act, which requires disclosure of those who "commissioned or paid for" the survey, includes subscribers who pay for access to survey results. The use of the disjunctive "or" separates the two classes, and "paid for" makes no distinction between direct purchasers and those who purchase via subscription.
  • The requirement is a valid regulation in the exercise of police power and effects the constitutional policy of guaranteeing equal access to opportunities for public service under Article II, Section 26 of the Constitution.
  • The regulation does not violate free speech. It is not prior restraint because it regulates only the manner of publication (disclosure upon publication) and does not prohibit or censor speech. The equality-based approach to free speech allows regulation promoting political equality to prevail over speech in the context of electoral campaigns.
  • The regulation does not violate the non-impairment clause. The constitutional guaranty of non-impairment is limited by the exercise of police power in the interest of public welfare. The law is deemed written into the contract, and the regulation is not capricious, whimsical, unjust, or unreasonable, being anchored on a compelling state interest.

• Police Power vs. Non-impairment of Contracts — The constitutional guaranty against impairment of contracts is limited by the State's exercise of police power in the interest of public health, safety, morals, and general welfare; the law is deemed written into every contract.
• Equality-Based Approach to Free Speech — In the context of electoral campaigns, regulation promoting political equality (redistributing speaking power) may prevail over speech to ensure that marginalized or resource-poor candidates are not drowned out by dominant political actors.
• Prior Restraint — Official governmental restrictions on expression in advance of actual publication or dissemination; the requirement to disclose subscribers is not prior restraint because it applies only upon publication and does not prohibit speech.
• Verba Legis (Plain Meaning Rule) — Applies only when the law is completely clear and leaves absolutely no room for interpretation; if parties disagree on the plain meaning, this indicates ambiguity requiring holistic interpretation considering context and constitutional ideals.
• COMELEC's Rule-Making Power — While COMELEC has wide discretion to enforce election laws, its subordinate legislation must be germane to the objects and purposes of the law and in conformity with the standards prescribed by law; a regulation exceeding the statute is ultra vires.

• "The inclusion of election surveys in the list of items regulated by the Fair Election Act is a recognition that election surveys are not a mere descriptive aggregation of data... Election surveys have a similar nature as election propaganda."
• "Surveys, far from being a passive 'snapshot of many viewpoints held by a segment of the population at a given time,' can warp existing public opinion and can mould public opinion. They are constitutive."
• "The bandwagon effect induced by election surveys assumes even greater significance in considering the health of a democracy... The bandwagon effect conjures images of an impregnable majority, thereby tending to push farther toward the peripheries those who are already marginalized."
• "Liberty is self-determination, autonomy... But the subject of this autonomy is never the contingent, private individual as that which he actually is or happens to be; it is rather the individual as a human being who is capable of being free with the others."
• "In an equality-based approach, 'politically disadvantaged speech prevails over regulation[,] but regulation promoting political equality prevails over speech.'"
• "The constitutional guaranty of non-impairment... is limited by the exercise of the police power of the State, in the interest of public health, safety, morals and general welfare."
• "Dismembering an official issuance by producing only a portion of it... is not the same as serving on the concerned parties a copy of the official issuance itself."

• Social Weather Stations and Kamahalan Publishing Corp. v. COMELEC — Cited for the ruling declaring Section 5.4 of RA 9006 (prohibition on publishing surveys 15/7 days before election) unconstitutional; noted as no longer in effect.
• Diocese of Bacolod v. COMELEC — Cited extensively for the equality-based approach to free speech, the concept of deliberative democracy, and the "necessary condition" for democratic dialogue; also cited regarding compelling state interest including constitutionally declared principles.
• Chavez v. Gonzales — Cited for the definition of prior restraint as official governmental restrictions on expression in advance of actual publication or dissemination.
• Ligot v. Commission on Elections — Cited for the principle that COMELEC has wide latitude of discretion in the performance of its constitutional duty to enforce election laws.
• Alliance for Nationalism and Democracy v. COMELEC — Cited for the rule that factual findings of COMELEC are entitled to deference as an independent constitutional organ.
• Gerochi v. Department of Energy — Cited for the principle that subordinate legislation must be germane to the objects and purposes of the law and in conformity with the standards prescribed by the law.
• Ortigas and Co. V. Feati Bank — Cited for the principle that police power is superior to the non-impairment clause and that its exercise is valid unless capricious, whimsical, unjust, or unreasonable.
• Osmeña v. COMELEC and National Press Club v. COMELEC — Cited for the rule that regulation of speech in the context of electoral campaigns made by candidates or political parties may be regulated as to time, place, and manner.
• Saludaga v. Sandiganbayan — Cited for the interpretation of the disjunctive term "or" as separating alternatives.

• 1987 Constitution, Article II, Section 26 — Mandates the State to guarantee equal access to opportunities for public service and prohibit political dynasties; cited as the constitutional policy effectuated by the Fair Election Act.
• 1987 Constitution, Article IX-C, Section 2(1) — Grants COMELEC the power to enforce and administer all laws and regulations relative to the conduct of elections.
• 1987 Constitution, Article IX-C, Section 4 — Authorizes COMELEC to supervise or regulate media of communication to ensure equal opportunity for public information campaigns.
• 1987 Constitution, Article XIII, Section 1 — Requires Congress to give highest priority to measures that reduce political inequalities.
• 1987 Constitution, Article III, Section 10 — Guarantees against the impairment of contracts, subject to police power.
• Republic Act No. 9006 (Fair Election Act), Section 5.2(a) — Requires disclosure of the name of the person, candidate, party, or organization who commissioned or paid for the survey.
• Republic Act No. 9006 (Fair Election Act), Section 13 — Mandates that COMELEC rules and regulations take effect on the seventh day after publication in at least two daily newspapers of general circulation.
• Batas Pambansa Blg. 881 (Omnibus Election Code), Section 264 — Prescribes penalties for election offenses.

• Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Reyes, and Leonen, JJ. — Joined in the unanimous decision without issuing separate opinions.

• N/A — No dissenting opinions were recorded; Jardeleza, J. took no part due to prior action as Solicitor General, while Villarama, Jr., J. and Perlas-Bernabe, J. were on leave.