SWS & Pulse Asia v COMELEC (2015)

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(BASICALLY they assail the Resolution of COMELEC allowing regulation of published surveys
saying theres curtailment of rights. SC said valid because “this requirement is a valid regulation
in the exercise of police power and effects the constitutional policy of “guarantee[ing] equal
access to opportunities for public service[.]” Section 5.2(a)’s requirement of disclosing
subscribers neither curtails petitioners’ free speech rights nor violates the constitutional
proscription against the impairment of contracts.”

FACTS:

Commission on Elections’ (COMELEC) Resolution No. 9674 directed Social Weather Stations,
Inc. (SWS) and Pulse Asia, Inc. (Pulse Asia), as well as “other survey firms of similar
circumstance” to submit to COMELEC the names of all commissioners and payors of all surveys
published from February 12, 2013 to April 23, 2013, including those of their “subscribers.”

As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1) of the 1987
Constitution and Sections 5.1 to 5.3 of Republic Act No. 9006, otherwise known as the Fair
Elections Act, as implemented by COMELEC Resolution No. 9615.

COMELEC ordered survey firms to either comply with the directive in the Fair Election Act and
Resolution No. 9674 and submit within three (3) days from receipt of such Resolution the names
of the subscribers who paid for the pre-election survey conducted from February 15-17, 2013, or
be liable for the violation thereof, an act constitutive of an election offense.

SWS:
-They assail Resolution No. 9674 as having been issued ultra vires; where requiring the
submission of information on subscribers, is in excess of what the Fair Election Act requires.
-They assert that Resolution No. 9674 transgresses the Fair Election Act in making itself
executory immediately after publication. They add that COMELEC exceeded its authority —
creating an election offense where there was none before.
-They claim that it violates the non-impairment of contracts clause of the Constitution
-The resolution was enforced in violation of their right to due process (as they were charged
without being served with copies of the complaint filed against them)

COMELEC
-insists on the performance of its constitutional duty to enforce and administer all laws and
regulations relative to the conduct of an election.
-It adds that requiring the disclosure of survey subscribers addresses the requirement of
reporting election expenditures by candidates and political parties, thereby helping COMELEC
check compliance with this requirement.
ISSUES:
-W/N Resolution No. 9674 is invalid in requiring the disclosure of the names of "subscribers" of
election surveys? NO.
-W/N it curtails the petitioners’ freedom of speech? NO.
-W/N it constitutes impairment of petitioners’ contracts? NO.

- W/N COMELEC deprived petitioners of the due process of law? YES.

The Supreme Court partially granted the petition on the grounds that it sustains the validity of
Resolution No. 9674. The names of those who commission or pay for election surveys,
including subscribers of survey must be disclosed pursuant to Section 5.2 (a) of the Fair
Election Act. This, for the Supreme Court is a requirement, a valid regulation guaranteeing equal
access to opportunities for public service.

Such requirement, the court declares, neither curtails petitioners' free speech rights nor violates
the constitutional proscription against the impairment of contracts. The freedom to publish
election survey results still remains. The survey firms just have to abide the law in disclosing
their sponsors.

However, COMELEC is enjoined from prosecuting Social Weather Stations, Inc. and Pulse Asia,
Inc. for they were not served a copy of Resolution No. 9674 with which they were asked to
comply. They were also not served copies of the criminal Complaint subject of E.O. Case No.
13-222. Petitioners' right to due process was, thus, violated.

[IMPT DISCUSSION IN CASE RE POLI]:

It is necessary that the Fair Election Act be appreciated for what it is: a mechanism for ensuring
equality. The Fair Election Act is a means to effect the "necessary condition" to a genuine
democratic dialogue, to realizing a deliberative democracy. 1

1 The concept of this "necessary condition" was previously considered by this court in Diocese of
Bacolod v. COMELEC:

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized
how institutionalized inequality exists as a background limitation, rendering freedoms exercised within
such limitation as merely "protecting] the already established machinery of discrimination." In his view,
any improvement "in the normal course of events" within an unequal society, without subversion, only
strengthens existing interests of those in power and control.

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the
people — "implies a necessary condition, namely, that the people must be capable of deliberating and
choosing on the basis of knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought'." He submits that "[different opinions
and 'philosophies' can no longer compete peacefully for adherence and persuasion on rational grounds:
the 'marketplace of ideas' is organized and delimited by those who determine the national and the
individual interest."
What is involved here is petitioners' freedom of speech and of expression, that is, to publish
their findings. More specifically, what is involved here is their right to political speech, that which
"refers to speech 'both intended and received as a contribution to public deliberation about
some issue,' 'foster[ing] informed and civic-minded deliberation."

The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring
political equality, calls into operation the equality-based approach to weighing liberty to express
vis-a-vis equality of opportunities.

Diocese of Bacolod case:

In an equality-based approach, "politically disadvantaged speech prevails over

regulation[,] but regulation promoting political equality prevails over speech." This view
allows the government leeway to redistribute or equalize 'speaking power,' such as
protecting, even implicitly subsidizing, unpopular or dissenting voices often
systematically subdued within society's ideological ladder. This view acknowledges that
there are dominant political actors who, through authority, power, resources, identity, or
status, have capabilities that may drown out the messages of others. This is especially
true in a developing or emerging economy that is part of the majoritarian world like ours.

The traditional view has been to tolerate the viewpoint of the speaker and the content of
his or her expression. This view, thus, restricts laws or regulation that allows public
officials to make judgments of the value of such viewpoint or message content. This
should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must

provide limits to some expression during electoral campaigns.

Regulation of speech in the context of electoral campaigns made by candidates or the members
of their political parties or their political parties may be regulated as to time, place, and manner.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are
not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation (a) should be provided by
law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of
all candidates to be heard and considering the primacy of the guarantee of free expression, and
(d) demonstrably the least restrictive means to achieve that object. The regulation must only be
with respect to the time, place, and manner of the rendition of the message. In no situation may
the speech be prohibited or censored on the basis of its content. For this purpose, it will not
matter whether the speech is made with or on private property.

What is involved here is not election propaganda per se.

Election surveys, on their face, do not state or allude to preferred candidates. As a
means, election surveys are ambivalent.

When published, however, the tendency to shape voter preferences comes into play. In this
respect, published election surveys partake of the nature of election propaganda. It is then
declarative speech in the context of an electoral campaign properly subject to regulation.
Hence, Section 5.2 of the Fair Election Act's regulation of published surveys.
PROVISIONS INVOLVED:

-Sections 5.1 to 5.3 of Republic Act No. 9006, otherwise known as the Fair Election Act.

Sec. 5. Election Surveys.

AN ACT FOR FAIR ELECTION PRACTICES

5.1
Election surveys refer to 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 (hereafter referred to as "Survey").

5.2
During the election period, any person, natural as well as juridical, candidate or organization
who publishes a survey must likewise publish the following information:
The name of the person, candidate, party or organization who commissioned or paid for the
survey; The name of the person, polling firm or survey organization who conducted the survey;
The period during which the survey was conducted, the methodology used, including the
number of individual respondents and the areas from which they were selected, and the specific
questions asked;The margin of error of the survey; For each question for which the margin of
error is greater than that reported under paragraph (d), the margin of error for that question; and
A mailing address and telephone number, indicating it as an address or telephone number at
which the sponsor can be contacted to obtain a written report regarding the survey in
accordance with Subsection 5.3.

5.3
The survey together with raw data gathered to support its conclusions shall be available for
inspection, copying and verification by the COMELEC or by a registered political party or a bona
fide candidate, or by any COMELEC-accredited citizen's arm. A reasonable fee sufficient to
cover the costs of inspection, copying and verification may be charged.

-Based from the law above, COMELEC issued Resolution No. 9674 on April 23, 2013, which
orders survey firms to either comply with the directive in the Fair Election Act and Resolution
No. 9674 and submit within three (3) days from receipt of the Resolution the names of the
subscribers who paid for the pre-election survey conducted from February 15-17, 2013, or be
liable for the violation thereof, an act constitutive of an election offense.