UNIDO vs. COMELEC

The head of state, when he communicates with the people on any matter affecting the plan of government or any other matter of public interest, is entitled to privileges not equally available to the opposition, and no office or entity of government is obliged to give the opposition the same media facilities by which its contrary views may be ventilated. While the provisions of all election laws regulating propaganda through mass media apply to plebiscites, the opposition has no enforceable right to demand equal broadcast coverage as was accorded the President/Prime Minister in his "Pulong-Pulong sa Pangulo."

UNIDO was a political organization or aggrupation campaigning for "NO" votes on amendments to the 1973 Constitution proposed by the Batasang Pambansa for ratification in a plebiscite scheduled for April 7, 1981. COMELEC, pursuant to the 1973 Constitution and the 1978 Election Code, issued Resolutions Nos. 1467, 1468, and 1469, all dated March 5, 1981, providing for equal opportunity on public discussions and debates, equal time on broadcast media, and equal space on print media in the plebiscite campaign. The dispute concerned the application of these equal-time and equal-space rules to a nationwide radio-television program conducted by President Marcos in connection with the proposed amendments.

UNIDO was a political organization or aggrupation campaigning for "NO" votes on the amendments to the 1973 Constitution proposed by the Batasang Pambansa for ratification in the plebiscite scheduled for April 7, 1981. On March 5, 1981, COMELEC promulgated three resolutions governing the plebiscite campaign: Resolution No. 1467 on public discussions and debates, Resolution No. 1468 on the use of broadcast media, and Resolution No. 1469 on the use of print media. Resolution No. 1468 provided that broadcast time for campaign purposes, equal as to duration and quality, shall be available to all supporters or oppositors at the same rates or given free of charge, and that radio and television stations shall not be allowed to schedule any non-political program or permit any sponsor to manifestly favor or oppose any side of the plebiscite issues.

Newspapers announced that President Marcos would lead the campaign for "YES" votes on the proposed amendments in his nationwide "Pulong-Pulong sa Pangulo" radio-television program on Thursday, March 12, 1981, from 9:30 to 11:30 P.M., to be carried live by 26 television and 248 radio stations throughout the country. In response, UNIDO addressed a letter dated March 10, 1981 to COMELEC, demanding exactly the same opportunity, the same prime time, and the same number of TV and radio stations all over the country at the earliest possible date, to campaign for "NO" votes in the forthcoming plebiscite. On March 17, 1981, UNIDO's legal counsel, Ambrosio Padilla, sent a second letter reiterating the request for the same prime time and number of TV and radio stations utilized by President Marcos on March 12, and stating that UNIDO would hold a public meeting at Plaza Miranda, Quiapo, Manila on Saturday, March 21, 1981, requesting that it be covered by radio and television from 9:30 to 11:30 P.M.

COMELEC issued its Resolution of March 18, 1981, denying the demand. COMELEC reasoned that when President Marcos conducted his "pulong-pulong" on March 12, 1981, he did so in his capacity as President/Prime Minister and not as head of any political party; that the "Pulong-Pulong sa Pangulo" was of long standing and had been used to bring matters to the attention of the people; that it was not a political or partisan vehicle but an innovative system of participatory democracy; and that UNIDO had no right to demand equal coverage. COMELEC added that UNIDO was free to enter into appropriate contracts with the TV or radio stations, but that COMELEC could not direct these media to grant free use of their facilities.

UNIDO filed a motion for reconsideration dated March 20, 1981, submitting six reasons why the resolution should be reconsidered. UNIDO argued, among others, that the radio and television coverage on March 12 did not deal with any program of government or guideline of national policy but was a campaign for the approval of the constitutional amendments; that President Marcos used the facilities as political leader of the KBL and not as President/Prime Minister; that his function as President/Prime Minister was completed when the proposed amendments were passed by the Batasan; that the nature of the program is determined by its subject matter and not by its name; that requiring UNIDO to pay for time imposed an impossible financial condition; and that COMELEC had the constitutional power to have its resolutions on equal opportunity, equal space, and equal time respected and obeyed. COMELEC denied the motion for reconsideration for lack of merit in its Resolution of March 22, 1981.

• Violation of Equality and Fair Play: Petitioner argued that the COMELEC resolutions were contrary to the Constitution and the law, and were unjust, unfair, and inequitable, for they violated the basic principles of equality, good faith, and fair play, and were not conducive to ensuring free, orderly, and honest elections.
• Arbitrary Denial of Equal Broadcast Media: Petitioner maintained that its request for equal broadcast media coverage of its public meeting at Plaza Miranda on March 21, 1981 was arbitrarily denied; because the KBL campaign for "YES" votes used all the radios and televisions in the "Pulong-Pulong" of its political leader, President Marcos, the "NO" campaign of UNIDO should be granted the same right and equal use of the same facilities for the remaining days of the campaign up to the plebiscite on April 7, 1981.
• President Acted as Political Leader: Petitioner contended that the radio and television coverage on March 12 did not deal with any program of government or guideline of national policy; that the subject matter was a campaign for the approval of the constitutional amendments; and that President Marcos used the facilities in his capacity as political leader of the KBL and not as President/Prime Minister.
• Impossible Financial Condition: Petitioner argued that requiring UNIDO to pay for time in a national radio and TV coverage imposed an impossible financial condition, since President Marcos campaigning for "YES" votes did not enter into such contracts but had free use of the facilities.
• COMELEC's Duty to Enforce Its Resolutions: Petitioner maintained that COMELEC, as a constitutional body, had the constitutional right and power to have its resolutions on equal opportunity, equal space, and equal time respected and obeyed; otherwise, the resolutions would be only in form without substance.

• Restrictive Interpretation of "Free, Orderly and Honest Elections": The Solicitor General posited that the "free, orderly and honest elections" clause of Section 5, Article XII-C of the Constitution refers exclusively to the manner in which elections are conducted, that is, the manner in which voters are supposed to be allowed to vote.
• Newsworthy Event Proviso: The Solicitor General pointed to the explicit proviso in Section 41 of the Election Code that the equal-time-equal-space privilege must respect in all instances the right of stations to broadcast accounts of significant or newsworthy events and views on matters of public interest, and suggested that the TV and radio stations may not be blamed for considering the "Pulong-Pulong sa Pangulo" as coming within said proviso.
• Freedom of Speech and of the Press: The Solicitor General submitted that the view that election propaganda laws apply to plebiscites would subvert or curtail the freedom of speech and of the press to which the TV and radio station owners are entitled.

• Applicability of Election Propaganda Laws to Plebiscites: Whether the provisions of election laws regulating propaganda through mass media, such as Section 41 of the Election Code of 1978, apply to plebiscites on constitutional amendments.
• Capacity of the President in the "Pulong-Pulong": Whether President Marcos spoke in the "Pulong-Pulong sa Pangulo" as President/Prime Minister or as head of the KBL political party.
• Right of the Opposition to Equal Coverage: Whether UNIDO is entitled to equal broadcast media coverage as that accorded the President/Prime Minister.
• Indispensable Parties: Whether the TV and radio stations are indispensable parties whose non-inclusion deprives the Court of jurisdiction to act on the petition.

• Applicability of Election Propaganda Laws to Plebiscites: Yes. The "free, orderly and honest elections" clause of Section 5, Article XII-C of the Constitution applies to plebiscites, and the provisions of all election laws regulating propaganda through mass media, such as Section 41 of the Election Code of 1978, must be deemed applicable to plebiscites.
• Capacity of the President in the "Pulong-Pulong": He spoke as President/Prime Minister. The head of state, when he communicates with the people on matters affecting the plan of government or any other matter of public interest, is entitled to privileges not equally available to the opposition.
• Right of the Opposition to Equal Coverage: No. The opposition cannot be placed at par with the head of state, and no office or entity of government is obliged to give the opposition the same facilities by which its contrary views may be ventilated.
• Indispensable Parties: Yes. The TV and radio stations that would be directly affected by any injunction are not parties to the case, and their non-inclusion deprives the Court of jurisdiction to act.

• Applicability of Election Propaganda Laws to Plebiscites: The restrictive literal interpretation of the "free, orderly and honest elections" clause — that it refers exclusively to the manner in which elections are conducted — may hold for ordinary elections of officials, but the provision applies also to plebiscites, particularly one relative to constitutional amendments. It has been a steadfast ruling that plebiscites must be characterized by fair submission, meaning that voters must have had adequate opportunity to cast their votes with sufficient understanding of what they are voting on. The charter's reference to honest elections connotes fair submission in a plebiscite. It cannot be otherwise, for then the importance of suffrage for the election of officials would be more significantly valued than voting on the ratification of the Constitution or any amendment thereof. The Court could not yield to an unorthodox constitutional concept that relegates the fundamental law to a level less valued than the men who would run the government. Accordingly, the provisions of all election laws regulating propaganda through mass media, such as Section 41 of the Election Code of 1978, must be deemed applicable to plebiscites, and it is the duty of COMELEC to see to it that the sale of air time by TV and radio stations insures that time equal as to duration and quality is available to all candidates for the same office or political parties, groups, or aggrupations at the same rates or given free of charge. If such be the effect of the COMELEC regulations, it is because they must have been contemplated to constitute an exception to the freedom of speech and press clause, on account of considerations more paramount for the general welfare and public interest, which exceptions operate only during limited periods, that is, during the duration of the election campaign fixed in the charter itself and/or by law.

• Capacity of the President in the "Pulong-Pulong": While it may not be exactly proper to say that the President/Prime Minister has no counterpart, it is undeniable and but natural that the head of state of every country must, from the very nature of his position, be accorded certain privileges not equally available to those opposed to him. Since the head of state has the grave and tremendous responsibility of planning and implementing the plan of government itself, the opposition cannot be placed at par with him, since logically the opposition can only fiscalize the administration and punctualize its errors and shortcomings. When the head of state is afforded the opportunity, or when he feels it incumbent upon him, to communicate and dialogue with the people on any matter affecting the plan of government or any other matter of public interest, no office or entity of government is obliged to give the opposition the same facilities by which its contrary views may be ventilated. If the opposition leaders feel any sense of responsibility to counter the administration, it is up to them — and they are free — to avail of their own resources to accomplish their purpose; it is not for the administration to hand them on a silver platter the weapon they need. Where the head of state is at the same time the president of the political party in power, it does not necessarily follow that he speaks with two voices when he dialogues with the governed. The President/Prime Minister is the political head of all the people, and when he deems it warranted to present to them a plan of government which includes the modification of the existing structure of government, it is not only his right but his duty to take the people directly into his confidence and impart to them the reasons therefor and the corollary advantages thereof to their welfare. The opposition has the indisputable right to make every effort to thwart his objective, but it is far from saying that it is the duty of the administration to generously grant them the means to wage their campaign against it.

• Right of the Opposition to Equal Coverage: Petitioner failed to persuade the Court that the grant of the prayer compellingly pertains to it under the provisions of the Constitution, the Election Code of 1978, and the general resolutions and regulations of COMELEC regarding equal opportunity among contending political parties, groups, aggrupations, or individuals. COMELEC has the power to supervise and regulate the mass media in such respect, but such authority arises only when there is a showing that any sector or member of the media has denied to any party or person the right to which it or he is entitled. There are other political parties similarly situated as petitioner; to grant to petitioner what it wants, it must necessarily follow that such other parties should also be granted, which would be too much to expect from the media that has also its own right to earn its wherewithal. Most importantly, COMELEC is not supposed to dictate to the media when its prerogatives in the premises are not invoked in the proper manner, that is, after denial to the petitioner by the media is shown.

• Indispensable Parties: The TV and radio stations referred to in the petition, who would be directly affected by any injunction of COMELEC upon the Court's orders, are not parties to the case. It is elementary that the Court would be overreaching the bounds of its constitutional powers if it acceded to petitioner's request absent such indispensable parties. Petitioner had not shown that it had requested any TV or radio station to give it the same time and style of "pulong-pulong" as that afforded the President and that its request had been denied. Since the Court was not informed of the circumstances under which the President was accorded the privilege, it was not in a position to determine under what definite terms the order prayed for should be issued, considering that there are other groups and aggrupations, not to speak of individuals, similarly situated as petitioner who would also want to be heard. It is an inalienable right of the sector or member of the media concerned to be duly heard as an indispensable party.

• Fair Submission in a Plebiscite — The "free, orderly and honest elections" clause of Section 5, Article XII-C of the 1973 Constitution applies not only to ordinary elections of officials but also to plebiscites on constitutional amendments. The reference to honest elections connotes fair submission, meaning that voters must of necessity have had adequate opportunity, in the light of conventional wisdom, to cast their votes with sufficient understanding of what they are voting on. The Court applied this doctrine to hold that the provisions of all election laws regulating propaganda through mass media, such as Section 41 of the Election Code of 1978, must be deemed applicable to plebiscites.

• Head-of-State Privilege — The head of state of every country must, from the very nature of his position, be accorded certain privileges not equally available to those opposed to him. Since the head of state has the grave and tremendous responsibility of planning and implementing the plan of government itself, the opposition cannot be placed at par with him, since logically the opposition can only fiscalize the administration and punctualize its errors and shortcomings. When the head of state communicates and dialogues with the people on any matter affecting the plan of government or any other matter of public interest, no office or entity of government is obliged to give the opposition the same facilities by which its contrary views may be ventilated. The Court applied this doctrine to hold that the President/Prime Minister spoke in his capacity as head of state, not as head of the KBL, and that UNIDO had no right to demand equal coverage.

• Indispensable Parties — A party is indispensable if no final determination of the case can be had without it. The Court applied this doctrine to hold that the TV and radio stations that would be directly affected by any injunction were indispensable parties whose non-inclusion deprived the Court of jurisdiction to act on the petition.

• Election Propaganda Laws as Exception to Freedom of Speech and Press — If the effect of COMELEC regulations is to curtail the freedom of speech and of the press to which TV and radio station owners are entitled, it is because they must have been contemplated to constitute an exception to the freedom of speech and press clause, on account of considerations more paramount for the general welfare and public interest, which exceptions operate only during limited periods, that is, during the duration of the election campaign fixed in the charter itself and/or by law.

• "We are of the firm conviction that the charter's reference to honest elections connotes fair submission in a plebiscite." — This passage states the ratio decidendi for the holding that the "free, orderly and honest elections" clause applies to plebiscites, and is the canonical formulation of the fair-submission doctrine as applied to constitutional plebiscites.

• "We opine and so hold that the provisions of all election laws regulating propaganda through the mass media, for example, Section 41 of the Election Code of 1978, must be deemed applicable to plebiscites." — This is the Court's definitive holding extending election propaganda laws to plebiscites, and is frequently cited for that proposition.

• "Therefore, when the head of state is afforded the opportunity or when he feels it incumbent upon him to communicate and dialogue with the people on any matter affecting the plan of government or any other matter of public interest, no office or entity of the government is obliged to give the opposition the same facilities by which its contrary views may be ventilated." — This passage articulates the head-of-state privilege doctrine, the decisive ground for the dismissal of the appeal.

• "But surely, it is not for the administration to hand them on a silver platter the weapon they need." — This passage encapsulates the Court's rationale that the administration is not obliged to provide the opposition with the means to campaign against it, and is commonly quoted for its vivid formulation of the head-of-state privilege.

• Aratuc vs. Comelec, G.R. Nos. L-49705-09, February 8, 1979, 88 SCRA 251 — Cited by the Court in discussing the constriction of the Supreme Court's authority over the actuations of COMELEC under the new Constitution, in connection with the Court's reluctance to mandate COMELEC to act absent indispensable parties.
• Tolentino vs. Comelec, 41 SCRA 702 (1971) — Cited in Justice Teehankee's dissent as laying down the controlling doctrine of fair and proper submission, requiring that the people be given adequate time and information on the amendments to be voted upon for their conscientious deliberation and intelligent consent or rejection.
• Gonzales vs. Comelec, 21 SCRA 774 — Cited in Justice Teehankee's dissent, quoting retired Justice Conrado V. Sanchez's separate opinion that the word "submitted" means the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended and the proposed amendments and the meaning, nature, and effects thereof.
• Occena vs. Comelec (G.R. No. 56350) and Gonzales vs. National Treasurer (G.R. No. 56404) — Cited in Justice Teehankee's dissent as cases jointly decided on April 4, 1981, in which he voted to enjoin the holding of the plebiscite scheduled for April 7, 1981 on the ground of the controlling doctrine of fair and proper submission.

• Section 5, Article XII-C, 1973 Constitution — Provides that the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, may be supervised or regulated by the Commission during the election period for the purpose of ensuring free, orderly, and honest elections. The Court construed this clause as applicable also to plebiscites, particularly one relative to constitutional amendments, holding that the reference to honest elections connotes fair submission in a plebiscite.
• Section 41, Election Code of 1978 (Presidential Decree No. 1296) — Regulates election propaganda through mass media, requiring the Commission to promulgate rules and regulations regarding the sale of air time for political purposes during the campaign period to insure that time equal as to duration and quality is available to all candidates for the same office or political parties, groups, or aggrupations at the same rates or given free of charge, while respecting in all instances the right of stations to broadcast accounts of significant or newsworthy events and views on matters of public interest. The Court held that this provision must be deemed applicable to plebiscites.
• Sections 7 and 8, COMELEC Resolution No. 1468 — Section 7 provides that any radio broadcasting or television station that grants free of charge the use of air time to any supporter, oppositor, political party, group, or aggrupation shall also give similar air time free of charge to other supporters, oppositors, political parties, groups, or aggrupations, except when such use of air time is part of a news program or coverage involving a newsworthy event. Section 8 provides that in case the supporter, oppositor, political party, group, and the radio-television station cannot agree on the equal time to be sold or given free, the controversy shall be referred to the Commission whose decision shall be final and immediately executory. The Court cited these provisions in its discussion of the equal-time rules.

Aquino, Fernandez, and Guerrero, JJ., concurred. Makasiar, J., concurred in the result. Concepcion Jr., J., took no part. Abad Santos, J., was on leave.

Chief Justice Fernando filed a separate concurring opinion, in which Justice Melencio-Herrera concurred (with De Castro and Melencio-Herrera, JJ., also concurring). Chief Justice Fernando opined that in light of the traditional practice, constitutionally sanctioned not only in the Philippines but also in the United States and France, a President, even if running for reelection, by virtue of the position he holds, is necessarily in a more advantageous position, and that it cannot be said that COMELEC abused its discretion, much less gravely, in denying the request. He nonetheless submitted that COMELEC should exercise its supervisory authority to assure that the mass media accord equal access to the views espoused by petitioner as well as other opposition groups, as a signal contribution to the cause of free and honest elections as well as free speech.

• Justice Teehankee — Dissented from the dismissal of the petition and voted that it be granted due course. He invoked the controlling doctrine of fair and proper submission laid down in Tolentino vs. Comelec, which, especially in light of the proposed complex, complicated, and radical changes of the structure of government, requires that the people be given adequate time and information as to the amendments to be voted upon for their conscientious deliberation and intelligent consent or rejection. He stressed that COMELEC is fully authorized to issue all reasonable measures to the mass media, particularly to the government-owned television and radio stations, to grant petitioners as much time and space as is feasible (although understandably less than the President-Prime Minister as head of state and government) to air and disseminate their contrary views on the proposed amendments. He characterized the technical questions raised in the majority decision as to the non-impleader of the mass media as parties and other groups and aggrupations who also want to be heard as mere administrative problems which the Constitution has precisely entrusted to COMELEC to resolve and determine fairly and equitably.