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By Nora O. Gamolo
Editor, TMT-Barangay News
On May 5, 2001, the Social
Weather Stations and a Philippine publishing firm, Kamahalan, won a
decisive victory for political polling and survey freedom in the
Philippines, with the Supreme Court’s historic decision declaring
it unconstitutional to ban the publication of election surveys, even
for a limited time, before the election.
The Supreme Court granted the
petition of Social Weather Stations (SWS) and the publishing company
to strike off Sec. 5.4 of R.A. 9006—incongruously entitled the
Fair Election Practices Act—as a violation of the freedoms of
speech, of expression and of the press.
That section of the Election code
had banned publication of election surveys before the election, for
15 days in the case of national candidates, and 7 days for local
candidates. The Court’s decision came only 9 days before the May
14, 2001, elections for the two houses of Congress and for local
officials. It was, of course, the Commission on Elections’ duty to
implement the law. So it issued a notice that henceforth political
poll results would be banned.
SWS then immediately proceeded to
inform the general public, without risk of legal prosecution, of the
results of a fresh pre-election poll done over May 4-7.
Election survey is defined by law
as the measurement of opinions and perceptions of the voters as
regards a candidate’s popularity, qualifications, platforms or a
matter of public discussion in relation to the election, including
voters’ preference for candidates or publicly discussed issues
during the campaign period.
The petitioners SWS and Kamahalan
argued that the restriction on the publication of election survey
results constitutes a prior restraint on the exercise of freedom of
speech without any clear and present danger to justify such
restraint. They claimed that SWS and other pollsters conducted and
published the results of surveys prior to the 1992, 1995 and 1998
elections up to as close as two days before the election day without
causing confusion among the voters, and that there is neither
empirical nor historical evidence to support the conclusion that
there is an immediate and inevitable danger to the voting process
posed by election surveys.
The petitioners pointed out that
no similar restriction is imposed on politicians from explaining
their opinion or on newspapers or broadcast media from writing and
publishing articles concerning political issues up to the day of the
election. Consequently, they contended that there is no reason for
ordinary voters to be denied access to the results of election
surveys which are relatively objective.
On the other hand, the Commission
on Elections justified the restrictions in RA 9006 as necessary to
prevent the manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the election. It
contended that (1) the prohibition on the publication of election
survey results during the period covered by the ban is intended to
prevent the debasement of the electoral process arising from
manipulated surveys, bandwagon effect and absence of reply.
It also argued that it would
cause only minimal impairment of the freedom of expression since the
restriction being limited both in duration, i.e., the last 15 days
before the national election and the last seven days before a local
election. Hence, it does not prohibit election survey results per
se, but only require timeliness.
The Supreme Court held that the
petitioners were right—that sec. 5.4 of RA 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and
the press, being a prior restraint.
Where it concerns the media, the
Court also held that the grant of power to the Comelec under the
Constitution is limited to ensuring “equal opportunity, time,
space and the right to reply” as well as uniform and reasonable
rates of charges for the use of such media facilities for “public
information campaigns and forums among candidates.”
The Court noted that RA 9006 had
already lifted the ban on media advertising, and allows candidates
to advertise their candidacies in print and broadcast media. “To
sustain the ban on the publication of survey results would sanction
the censorship of all speaking by candidates in an election on the
ground that the usual bombasts and hyperbolic claims made during the
campaigns can confuse voters and thus debase the electoral
process,” said the Court.
The Court noted that in the
United States, no restriction on the publication of election survey
results exists, neither are there laws imposing an embargo on survey
results, even for a limited period, in other countries. The United
Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden
and Ukraine do not restrict the publication of election survey
results.
By prohibiting the publication of
election survey results because of the possibility that such
publication might undermine the integrity of the election, the ban
on political polling 15 days before an election “actually
suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by
newspaper columnists, radio and TV commentators, armchair theorists,
and other opinion makers,” and “shows a bias for a particular
subject matter, if not viewpoint, by preferring personal opinion to
statistical results.”
The Court held that “there are
certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise
any Constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or “fighting words,”
those which by their very utterance inflict injury or tend to incite
an immediate breach of the peace.
The prohibition imposed by the
contested provision of RA 9006 may be only for a limited time, but
the right of expression is direct, absolute, and substantial,
constituting a total suppression of a category of speech not made
any lesser because of the limited time of the ban.
While sec. 5.4 aims at the
prevention of last-minute pressure on voters, the creation of
bandwagon effect, “junking” of weak or “losing” candidates,
and resort to the form of election cheating called “dagdag-bawas,”
the Court held that there should be no sacrifice of the fundamental
right of expression, and that preventing these problems can be done
without suppressing free expression.
The Court also upheld the power
of the Comelec to confiscate bogus survey results calculated to
mislead voters. “Candidates can have their own surveys conducted.
No right of reply can be invoked by others. No principle of equality
is involved. It is a free market to which each candidate brings his
ideas,” said the Court.
It added, “As for the purpose
of the law to prevent bandwagon effects, it is doubtful whether the
government can deal with this natural-enough tendency of some
voters. Some voters want to be identified with the “winners.”
Some are susceptible to the herd mentality. Can these be
legitimately prohibited by suppressing the publication of survey
results which are a form of expression?”
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