Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-27833 April 18, 1969
IN THE MATTER O PETITION OR !ECLARATOR" RELIE RE CONSTITUTIONALIT" O REPU#LIC ACT $88%. ARSENIO GON&ALES '()
ELICISIMO R. CA#IGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
F. R. Cabigao in his own behalf as petitioner.
B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. orenzo !a"ada as amicus curiae.
ERNAN!O, J.:
A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged
political campaign bringing in their a!e serious evils not the least of hich is the ever increasing cost of see!ing public office, is challenged on
constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invo!ed
to nullify the act. "hus the #uestion confronting this Court is one of transcendental significance.
$t is faced ith the reconciliation of to values esteemed highly and cherished dearly in a constitutional democracy. %ne is the freedom of belief
and of e&pression availed of by an individual hether by himself alone or in association ith others of similar persuasion, a goal that occupies a place
and to none in the legal hierarchy. "he other is the safeguarding of the e#ually vital right of suffrage by a prohibition of the early nomination of
candidates and the limitation of the period of election campaign or partisan political activity, ith the hope that the time'consuming efforts, entailing
huge e&penditures of funds and involving the ris! of bitter rivalries that may end in violence, to paraphrase the e&planatory note of the challenged
legislation, could be devoted to more fruitful endeavors.
"he tas! is not easy, but it is unavoidable. "hat is of the very essence of (udicial duty. "o paraphrase a landmar! opinion,
)
hen e act in these
matters e do so not on the assumption that to us is granted the re#uisite !noledge to set matters right, but by virtue of the responsibility e cannot
escape under the Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, hen our competence
is appropriately invo!ed.
"his then is the crucial #uestion* $s there an infringement of liberty+ Petitioners so alleged in his action, hich they entitled ,eclaratory Relief
ith Preliminary $n(unction, filed on -uly .., )/01, a proceeding that should have been started in the of Court of 2irst $nstance but treated by this Court
as one of prohibition in vie of the seriousness and the urgency of the constitutional issue raised. Petitioners challenged the validity of to ne
sections no included in the Revised Election Code, under Republic Act No. 3445, hich as approved and too! effect on -une )1, )/01, prohibiting
the too early nomination of candidates
.
and limiting the period of election campaign or partisan political activity.
6
"he terms 7candidate7 and 7election campaign7 or 7partisan political activity7 are li!eise defined. "he former according to Act No. 3445 7refers to
any person aspiring for or see!ing an elective public office regarded of hether or not said person has already filed his certificate of candidacy or has
been nominated by any political party as its candidate.7 7Election campaign7 or 7partisan political activity7 refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office.7 "hen the acts ere specified. "here is a proviso that simple
e&pression of opinion and thoughts concerning the election shall not be considered as part of an election campaign. "here is the further proviso that
nothing stated in the Act 7shall be understood to prevent any person from e&pressing his vies on current political problems or issues, or from
mentioning the names of the candidates for public office hom he supports.7
3
Petitioner Cabigao as, at the time of the filing 0f the petition, an incumbent councilor in the 3th ,istrict of Manila and the Nacionalista Party
official candidate for 8ice'Mayor of Manila to hich he as subse#uently elected on November )), )/019 petitioner :on;ales, on the other hand, is a
private individual, a registered voter in the City of Manila and a political leader of his co'petitioner. $t is their claim that 7the enforcement of said
Republic Act No. 3445 in #uestion <ould= pre(udice <their= basic rights..., such as their freedom of speech, their freedom of assembly and their right to
form associations or societies for purpose not contrary to la, guaranteed under the Philippine Constitution,7 and that therefore said act is
unconstitutional.
After invo!ing ane the fundamental rights to free speech, free press, freedom of association and freedom of assembly ith a citation of to
American >upreme Court decisions,
?
they asserted that 7there is nothing in the spirit or intention of the la that ould legally (ustify its passage and
<enforcement= hether for reasons of public policy, public order or morality, and that therefore the enactment of Republic Act <No.= 3445 under, the
guise of regulation is but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right to form
associations and societies for purposes not contrary to la, ...7 "here as the further allegation that the nomination of a candidate and the fi&ing of
period of election campaign are matters of political e&pediency and convenience hich only political parties can regulate or curtail by and among
themselves through self'restraint or mutual understanding or agreement and that the regulation and limitation of these political matters invo!ing the
police poer, in the absence of clear and present danger to the state, ould render the constitutional rights of petitioners meaningless and ithout
effect.
"o the plea of petitioners that after hearing, Republic Act No. 3445 be declared unconstitutional, null and void, respondent Commission on
Elections, in its anser filed on August ), )/01, after denying the allegations as to the validity of the act 7for being mere conclusions of la, erroneous
at that,7 and setting forth special affirmative defenses, procedural and substantive character, ould have this Court dismiss the petition.
"hereafter the case as set for hearing on August 6, )/01. %n the same date a resolution as passed by us to the folloing effect* 7At the
hearing of case @'.1466 AArsenio :on;ales, et al. vs. Commission on ElectionsB, Atty. 2. Reyes Cabigao appeared for the petitioners and Atty. Ramon
Barrios appeared for the respondent and they ere given a period of four days from today ithin hich to submit, simultaneously,, their respective
memorandum in lieu of oral argument.7
%n August /, )/01, another resolution, self'e&planatory in character, came from this Court. "hus* 7$n ease :.R. No. @'.1466 AArsenio :on;ales,
et al. vs. Commission on ElectionsB, the Court, ith eight A4B -ustice present, having deliberated on the issue of the constitutionality of Republic Act No.
34459 and a divergence of vies having developed among the -ustices as to the constitutionality of section ?5'B, pars. AcB, AdB and AeB of the Revised
Election Code* considering the Constitutional provision that 7no treaty or la may be declared unconstitutional ithout the concurrence of to'thirds of
all the members of the A>upremeB CourtC Asec. )5, Art, 8$$B, the Court <resolved= to defer final voting on the issue until after the return of the -ustices
no on official leave.7
"he case as then reset for oral argument. At such hearing, one of the co'petitioners, no 8ice'Mayor 2elicisimo Cabigao of the City of Manila
acting as counsel, assailed the validity of the challenged legislation relying primarily on American >upreme Court opinion that arn against curtailment
in hatever guise or form of the cherished freedoms of e&pression, of assemble and of association, all embraced in the 2irst Amendment of the Dnited
>tates Constitution. Respondent Commission on Elections as duly represented by Atty. Ramon Barrios.
>enator @oren;o M. "aEada as as!ed to appear as amicus curiae. "hat he did, arguing most impressively ith a persuasive e&position of the
e&istence of undeniable conditions that imperatively called for regulation of the electoral process and ith full recognition that Act No. 3445 could
indeed be loo!ed upon as a limitation on the preferred rights of speech and press, of assembly and of association. Fe did (ustify its enactment hoever
under the clear and present danger doctrine, there being the substantive evil of elections, hether for national or local officials, being debased and
degraded by unrestricted campaigning, e&cess of partisanship and undue concentration in politics ith the loss not only of efficiency in government but
of lives as ell.
"he matter as then discussed in conference, but no final action as ta!en. "he divergence of vies ith reference to the paragraphs above
mentioned having continued, on %ct. )5, )/04, this Court, by resolution, invited certain entities to submit memoranda as amici curiae on the #uestion of
the validity of R.A. Act No. 3445. "he Philippine Bar Association, the Civil @iberties Dnion, the D.P. @a Center and the D.P. Gomen @ayersC Circle
ere included, among them. "hey did file their respective memoranda ith this Court and aided it in the consideration of the constitutional issues
involved.
). $n the course of the deliberations, a serious procedural ob(ection as raised by five members of the Court.
0
$t is their vie that respondent
Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be characteri;ed as other than a mere
re#uest for an advisory opinion. >uch a vie, from the remedial la standpoint, has much to recommend it. Nonetheless, a ma(ority ould affirm, the
original stand that under the circumstances it could still rightfully be treated as a petition for prohibition.
"he language of -ustice @aurel fits the case 7All aait the decision of this Court on the constitutional #uestion. Considering, therefore, the
importance hich the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that <its= constitutionality ...
be no resolved.7
1
$t may li!eise be added that the e&ceptional character of the situation that confronts us, the paramount public interest, and the
undeniable necessity for a ruling, the national elections being, barely si& months aay, reinforce our stand.
$t ould appear undeniable, therefore, that before us is an appropriate invocation of our (urisdiction to prevent the enforcement of an alleged
unconstitutional statute. Ge are left ith no choice then9 e must act on the matter.
"here is another procedural obstacle raised by respondent to be hurdled. $t is not insuperable. $t is true that ordinarily, a party ho impugns the
validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or ill sustain, direct in(ury as a result of its
enforcement.
4
Respondent cannot see such interest as being possessed by petitioners. $t may indicate the clarity of vision being dimmed, considering
that one of the petitioners as a candidate for an elective position. Even if such ere the case, hoever, the ob(ection is not necessarily fatal. $n this
(urisdiction, the rule has been sufficiently rela&ed to allo a ta&payer to bring an action to restrain the e&penditure of public funds through the
enforcement of an invalid or unconstitutional legislative measure.
/
.. $n the anser of the respondent as ell as its memorandum, stress as laid on Republic Act No. 3445 as an e&ercise of the police poer of
the state, designed to insure a free, orderly and honest election by regulating 7conduct hich Congress has determined harmful if unstrained and
carried for a long period before elections it necessarily entails huge e&penditures of funds on the part of the candidates, precipitates violence and even
deaths, results in the corruption of the electorate, and inflicts direful conse#uences upon public interest as the vital affairs of the country are sacrificed
to purely partisan pursuits.7 Evidently for respondent that ould suffice to meet the constitutional #uestions raised as to the alleged infringement of free
speech, free press, freedom of assembly and CfreedomC of association. Gould it ere as simple as that+
An elo#uent e&cerpt from a leading American decision
)5
admonishes though against such a cavalier approach. 7"he case confronts us again ith
the duty our system places on this Court to say here the individualCs, freedom ends the >tateCs poer begins. Choice on that border, no as alays
delicate, is perhaps more so here the usual. presumption supporting legislation is balanced by the preferred place given in our scheme to the great,
the indispensable democratic freedoms secured by the 2irst Amendment.... "hat priority gives these liberties a sanctity and a sanction not permitting
dubious intrusions. And it is the character of the right, not of the limitation, hich determines hat standard governs the choice...7
Even a leading American >tate court decision on a regulatory measure dealing ith elections, cited in the anser of respondent, militates
against a stand minimi;ing the importance and significance of the alleged violation of individual rights* 7As so construed by us, it has not been made to
appear that section 4)4/, Comp. :en. @as, section ?/.?, Rev. :en. >t., is on its face violative of any provision of either the state or 2ederal
Constitution on the sub(ect of free speech or liberty of the press, nor that its operation is in any ise subversive of any oneCs constitutional
liberty.7
))
Another leading >tate decision is much more emphatic* 7Broad as the poer of the legislature is ith respect to regulation of elections, that
poer is not holly ithout limitation. Dnder the guise of regulating elections, the legislature may not deprive a citi;en of the right of trial by (ury. A
person charged ith its violation may not be compelled to give evidence against himself. $f it destroys the right of free speech, it is to that e&tent
void.7
).
"he #uestion then of the alleged violation of Constitutional rights must be s#uarely met.l awphi#.n$t
6. No as to the merits. A brief resume of the basic rights on hich petitioners premise their stand that the act is unconstitutional may prove
illuminating. "he primacy, the high estate accorded freedom of e&pression is of course a fundamental postulate of our constitutional system. No la
shall be passed abridging the freedom of speech or of the press ....
)6
Ghat does it embrace+ At the very least, free speech and free press may be
identified ith the liberty to discuss publicly and truthfully any matter of public interest ithout censorship or punishment.
)3
"here is to be then no
previous restraint on the communication of vies or subse#uent liability hether in libel suits,
)?
prosecution for sedition,
)0
or action for damages,
)1
or
contempt proceedings
)4
unless there be a clear and present danger of substantive evil that Congress has a right to prevent.
"he vital need in a constitutional democracy for freedom of e&pression is undeniable hether as a means of assuring individual self'fulfillment, of
attaining the truth, of assuring participation by the people in social including political decision'ma!ing, and of maintaining the balance beteen stability
and change.
)/
"he trend as reflected in Philippine and American decisions is to recogni;e the broadcast scope and assure the idest latitude to this
constitutional guaranty. $t represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and ide'
open.
.5
$t is not going too far, according to another American decision, to vie the function of free speech as inviting dispute. 7$t may indeed best serve
its high purpose hen it induces a condition of unrest, creates dissatisfaction ith conditions as they are, or even stirs people to anger.7
.)
2reedom of
speech and of the press thus means something more than the right to approve e&isting political beliefs or economic arrangements, to lend support to
official measures, to ta!e refuge in the e&isting climate of opinion on any matter of public conse#uence. >o atrophied, the right becomes meaningless.
"he right belongs as ell, if not more, for those ho #uestion, ho do not conform, ho differ. "o paraphrase -ustice Folmes, it is freedom for the
thought that e hate, no less than for the thought that agrees ith us.
..
>o ith Emerson one may conclude that 7the theory of freedom of e&pression involves more than a techni#ue for arriving at better social
(udgments through democratic procedures. $t comprehends a vision of society, a faith and a hole ay of life. "he theory gre out of an age that as
aa!ened and invigorated by the idea of ne society in hich manCs mind as free, his fate determined by his on poers of reason, and his
prospects of creating a rational and enlightened civili;ation virtually unlimited. $t is put forard as a prescription for attaining a creative, progressive,
e&citing and intellectually robust community. $t contemplates a mode of life that, through encouraging toleration, s!epticism, reason and initiative, ill
allo man to reali;e his full potentialities. $t spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant.7
.6
2rom the language of the specified constitutional provision, it ould appear that the right is not susceptible of any limitation. No la may be
passed abridging the freedom of speech and of the press. "he realities of life in a comple& society preclude hoever a literal interpretation. 2reedom of
e&pression is not an absolute. $t ould be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained.
"here are other societal values that press for recognition. Fo is it to be limited then+
"his Court spo!e, in Cabansag v. Fernandez9
.3
of to tests that may supply an acceptable criterion for permissible restriction. "hus* 7"hese are
the Cclear and present dangerC rule and the Cdangerous tendencyC rule. "he first, as interpreted in a number of cases, means that the evil conse#uence
of the comment or utterance must be e&tremely serious and the degree of imminence e&tremely highC before the utterance can be punished. "he
danger to be guarded against is the Csubstantive evilC sought to be prevented.7 $t has the advantage of establishing according to the above decision 7a
definite rule in constitutional la. $t provides the criterion as to hat ords may be public established.7
"he Cabansag case li!eise referred to the other test, the 7dangerous tendency7 rule and e&plained it thus* 7$f the ords uttered create a
dangerous tendency hich the state has a right to prevent, then such ords are punishable. $t is not necessary that some definite or immediate acts of
force, violence, or unlafulness be advocated. $t is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used
be reasonably calculated to incite persons to acts of force, violence, or unlafulness. $t is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil hich the legislative body see!s to prevent.
Ge posed the issue thus* 7Fas the letter of Cabansag created a sufficient danger to a fair administration of (ustice+ ,id its remittance to the
PCAC create a danger sufficiently imminent to come under the to rules mentioned above+7 "he choice of this Court as manifest and indisputable. $t
adopted the clear and present danger test. As a matter of fact, in an earlier decision, %rimicias v. Fugoso,
.?
there as li!eise an implicit acceptance of
the clear and present danger doctrine.
Ghy repression is permissible only hen the danger of substantive evil is present is e&plained by -ustice Branders thus* ... the evil apprehended
is so imminent that it may befall before there is opportunity for full discussion. $f there be time to e&pose through discussion the falsehood and fallacies,
to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.7
.0
2or him the apprehended evil must
be 7relatively serious.7 2or 7<prohibition= of free speech and assembly is a measure so stringent that it ould be inappropriate as the means for averting
a relatively trivial harm to society.7 -ustice Blac! ould go further. Fe ould re#uire that the substantive evil be 7e&tremely serious.7
.1
%nly thus may
there be a reali;ation of the ideal envisioned by Cardo;o* 7"here shall be no compromise of the freedom to thin! oneCs thoughts and spea! them,
e&cept at those e&treme borders here thought merges into action.7
.4
$t received its original formulation from Folmes. "hus* 7"he #uestion in every
case is hether the ords used in such circumstances and of such a nature as to create a clear and present danger that they ill bring about the
substantive evils that Congress has a right to prevent. $t is a #uestion of pro&imity and degree.7
./
"his test then as a limitation on freedom of e&pression is (ustified by the danger or evil a substantive character that the state has a right to
prevent. Dnli!e the dangerous tendenc& doctrine, the danger must not only be clear but also present. "he term clear seems to point to a causal
connection ith the danger of the substantially evil arising from the utterance #uestioned. Present refers to the time element. $t used to be identified
ith imminent and immediate danger. "he danger must not only be probable but very li!ely inevitable.
3. Fo about freedom of assembly+ "he Bill of Rights as thus noted prohibits abridgment by la of freedom of speech or of the press. $t li!eise
e&tends the same protection to the right of the people peaceably to assemble. As as pointed out by -ustice Malcolm in the case of Dnited >tates v.
Bustos,
65
this right is a necessary conse#uence of our republican institution and complements the right of free speech. Assembly means a right on the
part of citi;ens to meet peaceably for consultation in respect to public affairs. 2rom the same Bustos opinion* 7Public policy, the elfare of society and
orderly administration of government have demanded protection for public opinion.7 "o paraphrase the opinion of -ustice Rutledge spea!ing for the
ma(ority in "homas v. Collins,
6)
it as not by accident or coincidence that the rights to freedom of speech and of the press ere coupled in a single
guaranty ith the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights hile not
identical are inseparable. "hey are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights herein they are
contained, applies to all. As emphatically put in the leading case of Dnited >tates v. Crui!shan!,
6.
7the very idea of a government, republican in form,
implies a right on the part of its citi;ens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances.7 As in
the case of freedom of e&pression, this right is not to be limited, much less denied, e&cept on a shoing of a clear and present danger of a substantive
evil that Congress has a right to prevent.
?. %ur Constitution li!eise recogni;es the freedom to form association for purposes not contrary to la.
66
Gith or ithout a constitutional
provision of this character, it may be assumed that the freedom to organi;e or to be a member of any group or society e&ists. Gith this e&plicit
provision, hatever doubts there may be on the matter are dispelled. Dnli!e the cases of other guarantee hich are mostly American in origin, this
particular freedom has an indigenous cast. $t can trace its origin to the Malolos Constitution.
$n the Dnited >tates, in the absence of an e&plicit provision of such character, it is the vie of -ustice ,ouglas that it is primarily the first
amendment of her Constitution, hich safeguards freedom of speech and of the press, of assembly and of petition 7that provides <associations= ith
the protection they need if they are to remain viable and continue to contribute to our 2ree >ociety.7
63
Fe adopted the vie of ,e "oc#ueville on the
importance and the significance of the freedom to associate. "hus* 7"he most natural privilege of man, ne&t to the right of acting for himself, is that of
combining his e&ertions ith those of his fello creatures and of acting in common ith them. "he right of association therefore appears to me almost
inalienable in its nature as the right of personal liberty. No legislator can attac! it ithout impairing the foundation of society.7
6?
"here can be no dispute as to the soundness of the above observation of ,e "oc#ueville. >ince man lives in social it ould be a barren
e&istence if he could not freely associate ith others of !indred persuasion or of congenial frame of mind. As a matter of fact, the more common form of
associations may be li!ely to be fraternal, cultural, social or religious. "hereby, for almost everybody, save for those e&ceptional fe ho glory in
aloofness and isolation life is enriched and becomes more meaningful.
$n a sense, hoever, the stress on this freedom of association should be on its political significance. $f such a right ere non'e&istent then the
li!elihood of a one'party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition ill simply cease to
e&ist9 minority groups may be outlaed, constitutional democracy as intended by the Constitution may ell become a thing of the past.
Political parties hich, as is originally the case, assume the role alternately of being in the ma(ority or in the minority as the ill of the electorate
dictates, ill lose their constitutional protection. $t is undeniable therefore, that the utmost scope should be afforded this freedom of association.
$t is indispensable not only for its enhancing the respect that should be accorded a human personality but e#ually so for its assurance that the
ishes of any group to oppose hatever for the moment is the party in poer and ith the help of the electorate to set up its on program of
government ould not be nullified or frustrated. "o #uote from ,ouglas ane* 7-ustice 2ran!furter thought that political and academic affiliations have a
preferred position under the due process version of the 2irst Amendment. But the associational rights protected by the 2irst Amendment are in my vie
much broader and cover the entire spectrum in political ideology as ell as in art, in (ournalism, in teaching, and in religion. $n my vie, government
can neither legislate ith respect to nor probe the intimacies of political, spiritual, or intellectual relationships in the myriad of laful societies and
groups, hether popular or unpopular, that e&ist in this country.7
60
Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form associations or
societies hen their purposes are 7contrary to la7. Fo should the limitation 7for purposes not contrary to la7 be interpreted+ $t is submitted that it is
another ay of e&pressing the clear and present danger rule for unless an association or society could be shon to create an imminent danger to
public safety, there is no (ustification for abridging the right to form association societies.
61
As as so aptly stated* 7"here is no other course consistent
ith the 2ree >ociety envisioned by the 2irst Amendment. 2or the vies a citi;en entertains, the beliefs he harbors, the utterances he ma!es, the
ideology he embraces, and the people he associates ith are no concern to government H until and unless he moves into action. "hat article of faith
mar!s indeed the main difference beteen the 2ree >ociety hich e espouse and the dictatorships both on the @eft and on the Right.7
64
Gith the
above principles in mind, e no consider the validity of the prohibition in Republic Act No. 3445 of the too early nomination of candidates and the
limitation found therein on the period of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech,
free press, freedom of assembly and freedom of association. $n effect hat are as!ed to do is to declare the act void on its face evidence having been
introduced as to its actual operation. "here is respectable authority for the court having the poer to so act. >uch fundamental liberties are accorded so
high a place in our constitutional scheme that any alleged infringement manifest in the ording of statute cannot be alloed to pass unnoticed.
6/
$n considering hether it is violative of any of the above rights, e cannot ignore of course the legislative declaration that its enactment as in
response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in e&istence, and li!ely to
continue unless curbed or remedied. "o assert otherise ould be to close oneCs eyes to the realities of the situation. Nor can e ignore the e&press
legislative purpose apparent in the proviso 7that simple e&pressions of opinion and thoughts concerning the election shall not be considered as part of
an election campaign,7 and in the other proviso 7that nothing herein stated shall be understood to prevent any person from e&pressing his vies on
current political problems or issues, or from mentioning the names of the candidates for public office hom he supports.7 >uch limitations #ualify the
entire provision restricting the period of an election campaign or partisan political activity.
"he prohibition of too early nomination of candidates presents a #uestion that is not too formidable in character. According to the act* 7$t shall be
unlaful for any political party political committee, or political group to nominate candidates for any elective public officio voted for at large earlier than
one hundred and fifty days immediately preceding an election, and for any other elective public, office earlier than ninety days immediately preceding
an election.7
35
"he right of association is affected. Political parties have less freedom as to the time during hich they may nominate candidates9 the curtailment
is not such, hoever, as to render meaningless such a basic right. "heir scope of legitimate activities, save this one, is not unduly narroed. Neither is
there infringement of their freedom to assemble. "hey can do so, but not for such a purpose. Ge sustain in validity. Ge do so unanimously.
"he limitation on the period of 7election campaign7 or 7partisan political activity7 calls for a more intensive scrutiny. According to Republic Act No.
3445* 7$t is unlaful for any person hether or not a voter or candidate, or for any group or association of persons hether or not a political party or
political committee, to engage in an election campaign or partisan political activity e&cept during the period of one hundred tenty days immediately
preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office.
"he term CcandidateC refers to any person aspiring for or see!ing an elective public office, regardless of hether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its candidate. "he term Celection campaignC or Cpartisan political activityC refers to
acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office ...7
$f that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stric!en don. Ghat other
conclusion can there be e&tending as it does to so ide and all'encompassing a front that hat is valid, being a legitimate e&ercise of press freedom as
ell as freedom of assembly, becomes prohibited+ "hat cannot be done9 such an undesirable eventuality, this Court cannot allo to pass.
$t is a ell'settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect on
speech9 a man may the less be re#uired to act at his peril here, because the free dissemination of ideas may be the loser.
3)
Ghere the statutory
provision then operates to inhibit the e&ercise of individual freedom affirmatively protected by the Constitution, the imputation of vagueness sufficient to
invalidate the statute is inescapable.
3.
"he language of -ustice ,ouglas, both appropriate and vigorous, comes to mind* 7Gords hich are vague and
fluid ... may be as much of a trap for the innocent as the ancient las of Caligula.7
36
Nor is the reason difficult to discern* .7"hese freedoms are delicate
and vulnerable, as ell as supremely precious in our society. "he threat of sanctions may deter their e&ercise almost as potently as the actual
application of sanctions.7
33
1. "he constitutional ob(ections are thus formidable. $t cannot be denied that the limitations thus imposed on the constitutional rights of free
speech and press, of assembly, and of association cut deeply, into their substance. "his on the one hand.
%n the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. "here can be under the
circumstances then no outright condemnation of the statute. $t could not be said to be unarranted, much less arbitrary. "here is need for refraining
from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof.
2or under circumstances that manifest abuses of the gravest character, remedies much more drastic than hat ordinarily ould suffice ould
indeed be called for. "he (ustification alleged by the proponents of the measures eighs heavily ith the members of the Court, though in varying
degrees, in the appraisal of the aforesaid restrictions to hich such precious freedoms are sub(ected. "hey are not unaare of the clear and present
danger that calls for measures that may bear heavily on the e&ercise of the cherished rights of e&pression, of assembly, and of association.
"his is not to say, that once such a situation is found to e&ist there is no limit to the alloable limitations on such constitutional rights. "he clear
and present danger doctrine rightly vieed re#uires that not only should there be an occasion for the imposition of such restrictions but also that they
be limited in scope.
"here are still constitutional #uestions of a serious character then to be faced. "he practices hich the act identifies ith 7election campaign7 or
7partisan political activity7 must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom
of association. Ghat removes the sting from constitutional ob(ection of vagueness is the enumeration of the acts deemed included in the terms
7election campaign7 or 7partisan political activity.7
"hey are* 7AaB 2orming organi;ations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes andIor
underta!ing any campaign or propaganda for or against a party or candidate9 AbB holding political conventions, caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose of soliciting votes andIor underta!ing any campaign or propaganda for or against a
candidate or party9AcB ma!ing speeches, announcements or commentaries or holding intervies for or against the election or any party or candidate for
public office9 AdB publishing or distributing campaign literature or materials9 AeB directly or indirectly soliciting votes andIor underta!ing any campaign or
propaganda for or against any party9 AfB giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly.7
3?
As
thus limited the ob(ection that may be raised as to vagueness has been minimi;ed, if not totally set at rest.
30
4. "his Court, ith the aforementioned five -ustices unable to agree, is of the vie that no unconstitutional infringement e&ists insofar as the
formation of organi;ation, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or underta!ing any campaign
or propaganda or both for or against a candidate or party is restricted
31
and that the prohibition against giving, soliciting, or receiving contribution for
election purposes, either directly or indirectly, is e#ually free from constitutional infirmity.
34
"he restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes or underta!ing any campaign or propaganda or both for or against a candidate or party,
3/
leaving
untouched all other legitimate e&ercise of such poses a more difficult #uestion. Nevertheless, after a thorough consideration, and ith the same
-ustices entertaining the opposite conviction, e re(ect the contention that it should be annulled. Candor compels the admission that the riter of this
opinion suffers from the gravest doubts. 2or him, such statutory prescription could very ell be ithin the outermost limits of validity, beyond hich lies
the abyss of unconstitutionality.
"he other acts, li!eise deemed included in 7election campaign7 or 7partisan political activity7 ta& to the utmost the (udicial predisposition to vie
ith sympathy legislative efforts to regulate election practices deemed inimical, because of their collision ith the preferred right of freedom of
e&pression. 2rom the outset, such provisions did occasion divergence of vies among the members of the Court. %riginally only a minority as for their
being ad(udged as invalid. $t is not so. any more.
?5
"his is merely to emphasi;e that the scope of the curtailment to hich freedom of e&pression may
be sub(ected is not foreclosed by the recognition of the e&istence of a clear and present danger of a substantive evil, the debasement of the electoral
process.
"he ma(ority of the Court is thus of the belief that the solicitation or underta!ing of any campaign or propaganda hether directly or indirectly, by
an individual,
?)
the ma!ing of speeches, announcements or commentaries or holding intervie for or against the election for any party or candidate for
public office,
?.
or the publication or distribution of campaign literature or materials,
?6
suffer from the corrosion of invalidity. $t lac!s hoever one more
affirmative vote to call for a declaration of unconstitutionality.
"his is not to deny that Congress as indeed called upon to see! remedial measures for the far'from'satisfactory condition arising from the too'
early nomination of candidates and the necessarily prolonged, political campaigns. "he direful conse#uences and the harmful effects on the public
interest ith the vital affairs of the country sacrificed many a time to purely partisan pursuits ere !non to all. Moreover, it is no e&aggeration to state
that violence and even death did fre#uently occur because of the heat engendered by such political activities. "hen, too, the opportunity for dishonesty
and corruption, ith the right to suffrage being bartered, as further magnified.
Dnder the police poer then, ith its concern for the general elfare and ith the commendable aim of safe'guarding the right of suffrage, the
legislative body must have felt impelled to impose the foregoing restrictions. $t is understandable for Congress to believe that ithout the limitations
thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 3445 ould be frustrated and nullified. Ghatever persuasive force
such approach may command failed to elicit the assent of a ma(ority of the Court. "his is not to say that the conclusion reached by the minority that the
above poisons of the statute no assailed has passed the constitutional test is devoid of merit.
$t only indicates that for the ma(ority, the prohibition of any speeches, announcements or commentaries, or the holding of intervies for or
against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials,
against the solicitation of votes hether directly or indirectly, or the underta!ing of any campaign literature or propaganda for or against any candidate
or party is repugnant to a constitutional command. "o that e&tent, the challenged statute prohibits hat under the Constitution cannot by any la be
abridged.
More specifically, in terms of the permissible scope of legislation that otherise could be (ustified under the clear and present danger doctrine, it
is the consideration opinion of the ma(ority, though lac!ing the necessary vote for an ad(udication of invalidity, that the challenged statute could have
been more narroly dran and the practices prohibited more precisely delineated to satisfy the constitutional re#uirements as to a valid limitation
under the clear and present danger doctrine.
$n a )/04 opinion, the American >upreme Court made clear that the absence of such reasonable and definite standards in a legislation of its
character is fatal.
?3
Ghere, as in the case of the above paragraphs, the ma(ority of the Court could discern 7an over breadth that ma!es possible
oppressive or capricious application7
??
of the statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. >uch
provisions offend the constitutional principle that 7a governmental purpose constitutionally sub(ect to control or prevent activities state regulation may
not be achieved by means hich seep unnecessarily broadly and thereby invade the area of protected freedoms.
?0
$t is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that
broadly stifle fundamental personal liberties hen the end can be more narroly achieved.
?1
2or precision of regulation is the touchstone in an area so
closely related to our most precious freedoms.
?4
Dnder the circumstances then, a ma(ority of the Court feels compelled to vie the statutory provisions in #uestion as unconstitutional on their
face inasmuch as they appear to range too idely and indiscriminately across the fundamental liberties associated ith freedom of the mind.
?/
>uch a conclusion does not find favor ith the other members of the Court. 2or this minority group, no (udgment of nullity insofar as the
challenged sections are concerned is called for. $t cannot accept the conclusion that the limitations thus imposed on freedom of e&pression vitiated by
their latitudinarian scope, for Congress as not at all insensible to the problem that an all'encompassing coverage of the practices sought to be
restrained ould seriously pose.
>uch an approach finds support in the e&position made by the author of the measure, >enator @oren;o M. "aEada, appearing before us
as amicus curiae. Fe did clearly e&plain that such provisions ere deemed by the legislative body to be part and parcel of the necessary and
appropriate response not merely to a clear and present danger but to the actual e&istence of a grave and substantive evil of e&cessive partisanship,
dishonesty and corruption as ell as violence that of late has invariably marred election campaigns and partisan political activities in this country. Fe
did invite our attention li!eise to the ell'settled doctrine that in the choice of remedies for an admitted malady re#uiring governmental action, on the
legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or
disregarded.
More than that, he ould stress the to provisos already mentioned, precisely placed in the state as a manifestation of the undeniable legislative
determination not to transgress the preferred freedom of speech, of press, of assembly and of association. $t is thus provided* 7"hat simple e&pressions
or opinion and thoughts concerning the election shall not be considered as part of an election campaign <and that nothing in the Act= shall be
understood to prevent any person from e&pressing his vies on current political problems or issues, or from mentioning the names of the candidates
for public office hom he supports.
05
$f properly implemented then, as it ought to, the barrier to free, e&pression becomes minimal and far from
unarranted.
2or the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt hatever cutting edge may be ascribed to
the fears entertained that Congress failed to abide by hat the Constitution commands as far as freedom of the mind and of association are concerned.
$t is its opinion that it ould be premature to say the least, for a (udgment of nullity of any provision found in Republic Act No. 3445. "he need for
ad(udication arises only if in the implementation of the Act, there is in fact an unconstitutional application of its provisions. Nor are e called upon,
under this approach, to anticipate each and every problem that may arise. $t is time enough to consider it hen there is in fact an actual, concrete case
that re#uires an e&ercise of (udicial poer.
/. "o recapitulate, e give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process. "here is
full acceptance by the Court of the poer of Congress, under narroly dran legislation to impose the necessary restrictions to hat otherise ould
be liberties traditionally accorded the idest scope and the utmost deference, freedom of speech and of the press, of assembly, and of association. Ge
cannot, hoever, be recreant to the trust reposed on us9 e are called upon to safeguard individual rights. $n the language of -ustice @aurel* 7"his
Court is perhaps the last bular! of constitutional government. $t shall not obstruct the popular ill as manifested through proper organs... But, in the
same ay that it cannot renounce the life breathed into it by the Constitution, so may it not forego its obligation, in proper cases, to apply the
necessary,...7
0)
Ge recogni;e the ide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the (udiciary, it is not
alays possible, even ith the utmost sympathy shon for the legislative choice of means to cure an admitted evil, that the legislative (udgment arrived
at, ith its possible curtailment of the preferred freedoms, be accepted uncritically. "here may be times, and this is one of them, ith the ma(ority, ith
all due re(ect to a coordinate branch, unable to e&tend their approval to the aforesaid specific provisions of one of the sections of the challenged
statute. "he necessary to'third vote, hoever, not being obtained, there is no occasion for the poer to annul statutes to come into play.
>uch being the case, it is the (udgment of this Court that Republic Act No. 3445 cannot be declared unconstitutional.
GFERE2%RE, the petition is dismissed and the rit of prayed for denied. Githout costs.
Concepcion' C.(.' Re&es' (.B..' )a*alintal and !eehan*ee' ((.' concur in the result.
S*p'r'+* Opi(io(,
SANCHE&, J., concurring and dissenting*
Petitioners in the present case aim at stri!ing don as violative of constitutional guarantees Republic Act 3445, the principal features of hich
are contained in its >ections ), inserting >ections ?5'A and ?5'B beteen >ections, ?5 and ?) of the Revised Election Code, reproduced herein as
follos*
)
>EC"$%N ). Republic Act Numbered %ne hundred and eighty, as amended, is hereby further amended by inserting ne sections to
be !non as >ections ?5'A and ?5'B, beteen >ections ?5 and ?) thereof, hich shall read as follos*
>EC. ?5'A. %rohibition of too earl& nomination of Candidates. H $t shall be unlaful for any political party, Political Committee, or
Political group to nominate candidates for any elective public office voted for a large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public office earlier than ninety days immediately preceding an election.
>EC ?5'B. imitation upon the period of Election Campaign or %artisan %olitical Activit&. H $t is unlaful for any person hether or
not a voter or candidate, or for any group or association of persons, hether or not a political party or political committee, to engage in an
election campaign or partisan political activity e&cept during the period of one hundred tenty days immediately preceding an election for
any public office.
"he term 7Candidate7 refers to any person aspiring for or see!ing an elective public office, regardless of hether or not said person
has already filed his certificate of candidacy or has been nominated by any political party as its candidate.
"he term 7Election Campaign7 or 7Partisan Political Activity7 refers to acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office hich shall include*
AaB 2orming %rgani;ations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes
andIor underta!ing any campaign or propaganda for or against a party or candidate9
AbB Folding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes andIor underta!ing any campaign or propaganda for or against any candidate or party9
AcB Ma!ing speeches, announcements or commentaries or holding intervies for or against the election of any party or
candidate for public office9
AdB Publishing or distribution campaign literature or materials9
AeB ,irectly or indirectly soliciting vote andIor underta!ing any campaign or propaganda for or against any candidate or party9
AfB :iving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly* %rovided, "hat simple
e&pressions or 2 opinion and thoughts concerning the election shall not be considered as part of an election
campaign* %rovided' further, "hat nothing herein stated shall be understood to prevent any person from e&pressing his vies on
current political problems or issues, or from mentioning the names of the candidates for public office hom he supports.
Appropriately to be stated right at the start is that violation of the above provisions is considered a serious election offense. "he penalty is
7imprisonment of not less than one A)B year and one A)B day but not more than five A?B years7 ith accompanying 7dis#ualification to hold a public office
and deprivation of the right of suffrage for not less than one A)B year but more than nine A/B years7 and payment of costs.
6
). "he issue of constitutionality of R.A. 3445 again brings to the fore the eternally'arring concepts of individual liberty and state authority.
$nvalidity is pressed on the ground that the statute violates the rights of free speech and press, of peaceable assembly, and of association.
3
"his
Court is as!ed to rule that in the conte&t of the ill'effects to be cured, the legislative remedy adopted, vis+a+vis the rights affected, does not meet hat
petitioners claim to be the rational basis test9 that, on the contrary, the relief prescribed ould more li!ely produce the very evils sought to be
prevented. "his necessitates a circumspect discussion of the issue.
$n proceeding the or!ing assumption is that individual liberty is not absolute. Neither is state authority, inspite of its seep, limitable. 2i&ed
formulas and ready'made rules that see! to balance these to concepts could ell redeem one from the unnerving tas! of deciding hich ought to
prevail.
$t is at this point that e call to mind the principle that the relation beteen remedy and evil should be of such pro&imity that unless prohibited,
conduct affecting these rights ould create a 7clear and present danger that ill bring about substantive evils that Congress has a right to prevent.7
?
Githal doctrines hich conceal behind the cloa! of authoritative origin a tendency to muffle the demands of society, must pass the glaring light of
contemporaneity. 2or, in the consideration of #uestions on constitutionality, one should remain receptive to the implication of -ohn MarshallCs resonant
ords that 7it is a constitution e are e&pounding.7
0
>uch authority here manifests itself in legislation intended as an anser to the strong public sentiment that politics is groing into a ay of life,
that political campaigns are becoming longer and more bitter. $t is a result of legislative Appraisal that protracted election campaign is the root of
undesirable conditions. Bitter rivalries precipitate violence and deaths. Fuge e&penditures of funds give deserving but poor candidates slim chances of
inning. "hey constitute an inducement to graft to inning candidates already in office in order to recoup campaign e&penses. Fandouts doled out by
and e&pected from candidates corrupt the electorate. %fficial duties and affairs of state are neglected by incumbent officials desiring to run for
reelection. "he life and health of candidates and their folloers are endangered. PeopleCs energies are dissipated in political bic!erings and long
dran'out campaigns.
1
$ndeed, a dran'out political campaign ta&es the reservoir of patience and undermines respect of the electorate for democratic
processes. >ustained and bilious political contests eat aay even the veneer of civility among candidates and their folloers and transplant brute force
into the arena.
>uch legislative appraisal, such ill'effects, then must constitute a principal lever by hich one concept could in mastery over the other.
R.A. 3445 is a police poer legislation. $t as enacted by virtue of the inherent poer of Congress to legislate on matters affecting public interest
and elfare,
4
as ell as in pursuance of the constitutional policy of insuring a free, honest and orderly election.
/
Basically, the undefined scope of that
poer e&tends as far as the frontiers of public interest ould advance. 2ittingly, legislative determination of the breadth of public interest should
Command respect. 2or, Congress is the constitutional body vested ith the poer to enact las. $ts representative composition induces (udgment
culled from the diverse regions of the country. Normally, this should assure that a piece of police legislation is a reflection of hat public interest
contemporaneously encompasses.
.. $t is, hoever, postulated that the right of peaceable assembly is violated by the prohibition on holding political assemblies for a period lasting
more than one year9 that the right to form associations is contravened by forbidding, for the same period, the formation of political groups9 that, finally,
freedom of speech and of the press is unduly restricted by a legislative fiat against speeches, announcements, commentaries or intervies favorable or
unfavorable to the election of any party or candidate, publishing or distributing campaign literature or materials, and directly or indirectly soliciting votes
andIor under'ta!ing any campaign or propaganda for or against any candidate or party, e&cept during a number of days immediately preceding the
election.
Ghat has repeatedly been urged is the vie that the underlying historic importance of the foregoing specified rights in democratic societies
re#uires that the posture of defense against their invasion be firmer and more uncompromising than hat may be e&hibited under the general due
process protection.
)5
"he absolute terms by hich these specific rights are recogni;ed in the Constitution (ustifies this conclusion.
))
And yet, sight should not be lost of the fact that Congress has made a determination that certain specific evils are traceable directly to protracted
election, activities. Congress has found a solution to minimi;e, if not prevent, those evils by limiting the period of engaging in such activities. "he
proponents of validity ould rely upon e&perience to deduce the connection beteen the cited evils and prolonged political campaign. By limiting the
period of campaign, so they say, it is e&pected that the undesirable effects ill be iped out, at least, relieved to a substantial degree.
"his, of course, is largely an assumption. Congress e must stress, has put up an untried measure to solve the problematic situation. ,eduction
then is the only avenue open* for Congress, to determine the necessity for the la9 for the Court, its validity. "he possibility of its inefficaciousness is
not remote. But so long as a remedy adopted by Congress, as far as can logically be assumed, measures up to the standard of validity, it stands.
Ge give our imprimatur to >ection ?5'A. Ge may not tag as unconstitutional ?5'B, and its subsections AaB, AbB and AfB. Ge fear no serious evil
ith their enforcement. "hey do not offend the constitutionally protected speech and press freedoms, and rights of peaceable assembly and
association. "he latter must yield. "he proscriptions set forth in all of them are clear'cut, not open to reasonable doubt, nor easily susceptible to
unreasonable interpretation. Public interest and elfare authori;e their incorporation into the statute boo!s.
6. "o this riter, hoever, the center of controversy is to be found in subsections AcB, AdB and AeB of >ection ?5'B.
"hose ho espouse validity assert that no undue restriction results because, by (urisprudence, solicitation and campaign are outside the ambit of
protected speech.
).
But this rule, it ould seem to us, has relevance only to commercial solicitation and campaign. "here is no point here in delving
into the desirability of e#uating, in social importance, political campaign ith advertisements of gadgets and other commercial propaganda or
solicitation.
)6
2or, the statute under consideration goes ell beyond matters commonly regarded as solicitation and campaign. >uffice it to say that
(urisprudence tends to incline liberally toards freedom of e&pression in any form hen placed in (u&taposition ith the regulatory poer of the >tate.
)3
@egislative history of the statute no before us indicates that hat Congress intends to regulate are partisan activities and active campaigning.
Campaigning, as defined by the sponsor of >enate Bill .5/ in the >enate, is a 7series of operations.7 "his, evidently, must have been adopted
from the dictionary meaning of campaign* a connected series of operations to bring about some desired result.
"he term 7partisan political activity7 has someho ac#uired a more or less definite signification. $t is not a ne feature in Philippine political la. $t
has been regulated to stem dangers to specific state interests. "he Constitution itself contains an in(unction against civil service officers and employees
from engaging directly or indirectly in partisan political activity or ta!ing part in any election e&cept to vote.
)?
"he civil service la
)0
and the Revised
Election Code,
)1
echo this absolute prohibition hich is obviously aimed at the possible neglect of public service and its prostitution ith partisan
interests. "he folloing are cited in the Civil >ervice Rules as e&amples of partisan political activity* candidacy for elective office9 being a delegate to
any political convention or member of any political committee or officer of any political club or other similar political organi;ation9 ma!ing speeches,
canvassing or soliciting votes or political support in the interest of any party or candidate9 soliciting or receiving contributions for political purposes
either directly or indirectly9 and becoming prominently identified ith the success or failure of any candidate or candidates for election to public office.
)4
$n the conte&t in hich the terms 7partisan political activity7 and 7election campaign7 are ta!en together ith the statutory purpose, the folloing
from -ustice Folmes ould be particularly instructive* 7Gherever the la dras a line there ill be cases very near each other on opposite sides. "he
precise course of the line may be uncertain, but no one can come near it ithout !noing that he does so, if he thin!s, and if he does so it is familiar to
the criminal la to ma!e him ta!e the ris!.7
)/
3. Perhaps if the phrases 7election campaign7 or 7partisan political activity7 ere left to be e&plained by the general terms of the la as solely
referring 7to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office7, it ould be difficult to
say that such prohibition is offensive to speech or press freedoms. But then the la itself sought to e&pand its meaning to include an area of prohibited
acts relating to candidates and political parties, ider than an ordinary person ould otherise define them.
>pecifically, discussion H oral or printed H is included among the prohibited conduct hen done in the folloing manner A>ection ?5' BB
AcB Ma!ing speeches, announcements or commentaries or holding intervies for or against the election of any party or candidate for public
office*
AdB Publishing or distributing campaign literature or materials9
AeB ,irectly or indirectly soliciting votes andIor underta!ing any campaign or propaganda for or against any candidate or party.
,efined only as laful discussion is the folloing*
%rovided. "hat simple e&pressions of opinion and thoughts concerning the election shall not be considered as part of an election
campaign* %rovided' further, "hat nothing herein stated shall be understood to prevent any person from e&pressing his vies on current
political problems or issues, or from mentioning the names of the candidates for public office hom he supports.
"he conduct involved in the discussion as to ma!e it illegal is not clearl& defined at all. "he implication then is that hat is prohibited is
discussion hich in the vie of another may mean political campaign or partisan political activity. "he spea!er or riter becomes captive under the
vigilant but himsical senses of each listener or reader. Fis ords ac#uire varying shades of forcefullness, persuasion and meaning to suit the
convenience of those interpreting them. A position becomes solicitation. As admonition becomes a campaign or propaganda.
As orded in R.A. 3445, prohibited discussion could cover the entire spectrum of e&pression relating to can candidates and political parties. No
discussion is safe. Every political discussion becomes suspect. No one can dra an indisputable dividing line beteen laful and unlaful discussion.
More so that statutory restraint falls upon an& person hether or not a voter or candidate.
Candidacy is not en(oined during the proscriptive period. A person may thus ma!e public his intention to run for public office. >o may an
incumbent official profess his desire to run for reelection. "he la therefore leaves open, especially to the electorate, the occasion if the temptation for
ma!ing statements relating to a candidacy ."he natural course is to comment upon or to discuss the merits of a candidate, his dis#ualifications, his
opponents for public office, his accomplishments, his official or private conduct. 2or, it can hardly be denied that candidacy for public office is a matter
of great public concern and interest.
Jet, this normal reaction to discuss or comment is mu;;led by an un#ualified prohibition on announcements or commentaries or intervies for or
against the election of any party or candidate, on publishing campaign literature, and on indirect solicitation and campaign or propaganda for or against
any party or candidate. Even incumbent officials are stopped. Every appearance before the public, every solicitous act for the public elfare may easily
become tainted.
?. Nor does the proviso offer any corresponding protection against uncertainty. 7>imple e&pressions of opinion and thoughts concerning the
election7 and e&pression of 7vies on current political problems or issues7 leave the reader to con(ecture, to guessor!, upon the e&tent of protection
offered, be it as to the nature of the utterance it simple e&pressions of opinion and thoughts7B or the sub(ect of the utterance A7current political problems
or issues7B. "he line dran to distinguish unauthori;ed 7political activity7 or 7election campaign7 H specifically, a speech designed to promote the
candidacy of a person from a simple e&pression of opinion on current political problems is so tenuous as to be indistinguishable.
.5
$f e are to
paraphrase Mr. -ustice Folmes, then the thought should run something li!e this* "he only difference beteen e&pression of an opinion and the
endorsement of a candidate is 7the spea*er,s enthusiasm for the result.7
.)
%nly one area is certain. A person may only mention the candidate hom he supports. Beyond mentioning the name, it is no longer safe. But is it
not unduly constricting the from of rational'minded'persons to bac! up their statements of support ith reasons+
"he peculiarity of discussion, be it oral or printed, is that it carries ith it varying degrees of 7enthusiasm and inclination to
persuade7,
..
depending upon the listener or reader. $t falls short of a partisan political activity hen it is devoid of partisan interest in the sense that it is
not made in the interest of a candidate or party. "his is the only criterion for validity. But ho is to decide this+ And ho+ "he la does not even re#uire
that there be an operation or a series of operations in order to measure up to an election campaign as it is commonly understood. $n this ay, the la
may ell become an instrument of harassment. Gorse, it could lull the potential had defendant into a false sense of security. $t then becomes a dragnet
that may trap anyone ho attempts to e&press a simple opinion on political issues.
0. More than this, the threat of punishment ill continually hound a spea!er ho e&pounds his vies on political issues. Because of its punitive
provisions, the statute surely tends to restrict hat one might, say his utterance be misunderstood as 7designed to promote the candidacy of a person.7
A person ould be !ept guessing at the precise limits of the permissible 7simple e&pression7. "o play safe, he ould be compelled to put reins on his
ords for fear that they may stray beyond the protected area of 7simple e&pression7. "he offshoot could only be a continuous and pervasive restraint
on all forms of discussion hich might time ithin the purvie of the statute. "his thought is not ne. $t is underscibed in -AAC% vs. Button, 61) D.>.
3)?, / @. ed, 35?, in language e&pressive, thus. H
"he ob(ectionable #uality of vagueness and over breadth does not depend upon absence of fair notice to a criminally accused or
upon unchanneled delegation of legislative poers, but upon the danger of tolerating, in the area of first amendment freedoms, the
e.istence of a penal statute susceptible of sweeping and improper application.... "hese freedoms are delicate and vulnerable as ell as
supremely precious in our society. !he threat of sanctions wa& deter their e.ercise almost as the actual application of the sanctions.
Because the first amendment freedoms need breathing space to survive, government may regulate in the area only Gith narro
specificity.
.6
$t is thus in the self'imposed restraint that or!s in the minds of ordinary, la'abiding citi;ens that a vague statute becomes un(ust.
Because of the indefiniteness created in subsections AcB, AdB and AeB of >ection ?5'B, they readily lend themselves to harsh application.
8agueness of the la enforcers. Arbitrary enforcement of the letter of the la by an e&pansive definition of election campaign or partisan political
activity, should not be branded as improbable. 2or, political rivalries span persecution. "he la then becomes an unitting tool. ,iscussion may be
given aprima facie label as against the harassed. "his is not altogether remote. "o be sure, harassment and persecution are not un!non to the
unscrupulous.
1. "hose ho favor validity find comfort in the theory that it is better for the meantime to leave the statute ell enough alone. "hey say that it is
preferable that courts of (ustice be alloed to hammer out the contours of the statute case by case. "his may not, hoever, be entirely acceptable. "o
forego the #uestion of constitutionality for no and ta!e ris!s may not be the iser move. As ell advocated elsehere.
.3
a series of court prosecutions
ill a statute, still leaving uncertain other portion thereof. And then, in deciding hether or statute can be salvaged, one must not hedge and assume
that hen it is enforced in the be resolved in favor of upholding free speech and press.
More important, there is the heavy penalty prescribed. A candidate, or any person for that matter, can unreasonably be saddled by court suits.
Even if the accused ere later to be declared innocent, thoroughly unnecessary is the burden of layersC fees, bail bonds and other e&penses, not to
say of energy to be consumed, effort to be e&pended, time to be spent, and the an&ieties attendant in litigation.
$t cannot really be said that the courage to spea! out, barring all ris!s, is an ordinary human trait. "imorous men should not gro in number. And
yet, it ould appear that this is the effect of the enforcement of the la. "he constant guide should be the arning of -ustice Brandeis 7that it is
ha;ardous to discourage thought, hope and imagination9 that fear breeds repression9 that repression breeds hate9 that hate menaces stable
government9 that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.7
.?
As e analy;e the import of the la, e come to the conclusion that subsections AcB, AdB and AeB of >ection ?5'B inserted into the Revised
Election Code by Republic Act 3445, heretofore transcribed, run smac! against the constitutional guarantees of freedom of speech and of the press.
Fence, this concurrence and dissent.
CASTRO, J., dissenting*
Presented for consideration and decision is the constitutionality of >ection ?5'A and ?5'B of the Revised Election Code, hich ere inserted as
amendatory provisions by Republic Act 3445.
)
"hese sections read in full as follos*
>EC. ?5'A. %rohibition of too earl& nomination of Candidates. H $t shall be unlaful for any political party, Political Committee or
Political group to nominate candidates for any elective public office voted for at large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public office earlier than ninety days immediately preceding an election.
>EC. ?5'B. imitation upon the period of Election Campaign or %artisan %olitical Activit&. H $t is unlaful for any person hether or
not a voter or candidate, or for any group or association of persons, hether or not a political party or political committee, to engage in an
election campaign or partisan political activity e&cept during the period of one hundred tenty days immediately preceding an election
involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office.
"he term 7Candidate7 refers to any person aspiring for or see!ing an elective public officer, regardless of hether or not said has
already filed his certificate of candidacy or has been nominated by any political candidate.
"he term 7Election Campaign7 or Partisan Political Activity refers to the acts designed to have a candidate elected or not or promote
the candidacy of a person or persons to a public office hich shall include*
AaB 2orming %rgani;ations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes
andIor underta!ing any campaign or propaganda for or against a party or candidate9
AbB Folding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes andIor against a candidate or party9
AcB Ma!ing speeches, announcements or commentaries or holding intervies for or against the election of any party or
candidate for public office9
AdB Publishing or distributing campaign literature or materials9
AeB ,irectly or indirectly soliciting votes andIor underta!ing any campaign or propaganda for or against any candidate or party9
AfB :iving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly. %rovided, "hat simple
e&pressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign9 %rovided'
further. "hat nothing herein stated shall understood to prevent any person from e&pressing his vies on current political
problems or issues, or from mentioning the names of the candidates for public office ho he supports.
8iolation of these to section are classified as 7serious election offenses7 under >ection )46 of the Revised Election Code, as amended R.A
3445, punishable ith 7imprisonment of not less than one year and one day but not more than five years7 and 7dis#ualification to hold a public office
and deprivation of the right of suffrage for not less than one year but not more than nine years.7
.
"he basic purpose of R.A. 3445 is easily discenible. Congress felt the need of curtailing e&cessive and e&travagant partisan political activities,
especially during an election year, and, to this end, sought to impose limitations upon the times during hich such activities may be lafully pursued.
"he legislative concern over e&cessive political activities as e&pressed in the folloing terms in the e&planatory note of >enate Bill .5/, hich finally
came R.A. 3445*
"here is nothing basically rong in engaging in an election campaign. Election campaign is indispensable part of election (ust as
election is one of the most important fundamental re#uirements of popular government.
$t is also during election campaign that the stands of prospective political parties on vital national and local issues are made !non to
the public, thereby guiding the enfranchised citi;enry in the proper and appropriate e&pression of its sovereign ill.
Past e&perience, hoever, has brought to light some very disturbing conse#uences of protracted election campaigns. Because of
prolonged e&posure of both candidates and the people to political tension, hat starts out at first as gentlemanly competition ends up into
bitter rivalries precipitating violence and even deaths. Prolonged election campaigns necessarily entail huge e&penditures of funds on the
part of the candidates. No, no matter ho deserving and orthy he is, a poor man has a very slim chance of inning an election.
Prolonged election campaigns indeed carry ith it not only the specter of violence and death, not only the ob(ectionable dominion of the rich
in the political arena, but also the corruption of our electorate. Ge must adapt our democratic processes to the needs of the times.
$
"he prohibitions introduced by R.A. 3445 purport to reach to types of activities, namely, AaB early nomination of candidates for elective public
offices A>ec. ?5'AB, and AbB early election campaigns or partisan political activities A>ec. ?5'BB. "he first prohibition is specifically directed against
political parties, committees, and groups9 the second prohibition is much more comprehensive in its intended reach, for it operates upon 7an&
person hether or not a voter or a candidate7 and 7an& group or association of persons hether or not a political party or political committee.7
>ection ?5'B brings ithin the ambit of its proscription a ide range of activities. "he catalogue of activity ties covered by the prohibition against
early election campaigning embraces to distinguishable types of acts9 AaB giving, soliciting or receiving contributions for election campaign purposes,
either directly or indirectly9 and AbB directly or indirectly soliciting votes or under'ta!ing any campaign or propaganda for or against any candidate or
party, hether by means of speech, publication, formation of organi;ations, or by holding conventions, caucuses, meetings or other similar assemblies.
"he term 7candidate7 is itself broadly defined to include 7any person aspiring for or see!ing an elective public office,7 hether or not such person has
been formally nominated.
"he seeping character of the prohibitions in >ection ?5'B is sought to be mitigated and delimited by the provisos e&empting from their
operation AaB 7simple e&pressions of opinion and thoughts concerning the election,7 AbB e&pression of 7vies on current political problems or issues,7
and AcB 7mentioning the names of the candidates for public office7 hom one supports.
Before assaying the constitutional #uality of >ections ?5'A and ?5'B, it is relevant to point out that these to section are not holly consistent
ith each other, and that considerable practical difficulties may be e&pected by those ho ould comply ith the re#uirements of both. Dnder >ection
?5'A, political parties are alloed to nominate their official candidates for offices voted for at large ithin )?5 days immediately preceding the election.
At the very least, this section ould seem to permit a political party to hold a nominating convention ithin the )?5 days period. >ection ?5'B, hoever,
ma!es it unlaful to promote or oppose the candidacy of any person see!ing such office, hether or not such person 7has been nominated by any
political party,7 and to engage in an election campaign 7for and against a candidate or party,7 e&cept ithin the period of ).5 days immediately
preceding the election. $ find it difficult to see ho a political party can stage a nominating convention )?5 days before an election if, at such time,
neither any person nor group ithin such party may see! a nomination by campaigning among the delegates to the convention. By its very, nature, a
nominating convention is intrinsically a forum for intensely partisan political activity. $t is at the nominating convention that contending candidates obtain
the formal endorsement and active support of their party the ultimate purpose of victory at the polls. A nominating convention, at hich activity
promoting or opposing the candidacies of particular persons see!ing nominations is forbidden, is a practical impossibility. "hus, the very broadness of
prohibitions contained in >ection ?5'B has the effect of reducing, as a practical matter, the time period specified in >ection ?5'A for nomination of
candidates for national offices from )?5 to ).5 days before an election.
$$
Ge turn to the central issue of constitutionality. "hat the legislature has, in broad principle, competence to enact las relative to the conduct of
elections is conceded. Congress may not only regulate and control the place, time and manner in hich elections shall be held, but may also provide
for the manner by hich candidates shall be chosen. $n the e&ercise of the police poer, Congress regulate the conduct of election campaigns and
activities by political parties and candidates, and prescribe measures reasonably appropriate to insure the integrity and purity of the electoral process.
"hus, it has not been seriously contested that Congress may establish restraints on e&penditures of money in political campaigns,
6
prohibit solicitation
of votes for a consideration,
3
and penali;e unlaful e&penditures relative to the nominations of dates.
?
@as of this !ind lie fairly ithin the area of
permissible regulation, and $ thin!, that, in shaping specific regulations, Congressional discretion may be e&ercised ithin a ide range ithout
remonstrance from the courts.
$f no more ere at sta!e in >ections ?5'A and ?5'B than the political or personal convenience of a candidates faction or political group, e could
ith the least hesitation resolve the issue of constitutionality in favor of the legislative intendment. But infinitely more is at sta!e, for in enacting this
prohibitions of >ections ?5'A and ?5'B, Congress has place undeniable burdens upon the e&ercise of fundamental political and personal freedoms
encased in the Bill of Rights from legislative intrusion. "here is firstly, a manifest restriction on the free e&ercise of the rights of speech and of the press
in the provisions of >ection ?5'B imposing a limitation of time on the folloing activities.
AcB Ma!ing speeches, announcements or commentaries or holding intervies for or against the election of any party or candidate or party9
AdB Publishing or distributing, campaign. literature or materials
AeB ,irectly or indirectly soliciting votes and or underta!ing any campaign or propaganda for or against any candidate or party9
@i!eise, the regulation of the time ithin hich nominations of candidates by political parties may ta!e place, under >ection ?5'A, and fi&ing a
time limit for holding 7political conventions, caucuses, conference meetings, rallies, parades, or other similar assemblies7 for campaign purposes under
paragraph AbB of >ection ?5'B, curtails the freedom of peaceful assembly. And finally, the right to form associations for purposes not contrary to la is
impinged upon by the provision of paragraph AaB of >ection ?5'B regulating the forming of 7%rgani;ations, Associations, Clubs, Committees or other
groups of persons for the purpose of soliciting votes andIor underta!ing any campaign or propaganda for or against a party or candidate.7
$t is fairly accurate to say that legislations imposing restrictions upon the right of free e&pression, and upon the right of assembly and of political
association indispensable to the full e&ercise of free e&pression, have commonly been sub(ected to more searching and e&acting (udicial scrutiny than
statutes directed at other personal activities. As aptly said by the Dnited >tates >upreme Court in Schneider v. /rvington*
0
$n every case, ... here legislative abridgment of the rights is asserted, the courts should be astute to e&amine the effect of the
challenged legislation. Mere legislative preference or beliefs respecting matters of public convenience may ell support regulation directed
at other personal activities but be in sufficient to (ustify such as diminishes are e&ercise of rights so vital to the maintenance of democratic
institutions.
!homas v. Collins
1
e&emplifies the same approach* 7"he rational connection beteen the remedy provided and the evil to be curbed, hich in
other conte&ts might support legislation against attac! on other grounds, ill not suffice. "hese rights <of e&pression and assembly= rest on firmed
foundations.7
"he belief that more e&acting constitutional tests are appropriately applied upon statutes having an actual or potential inhibiting effect on the right
of speech, and the cognate rights of assembly and association, flos from recognition of the nature and function of these rights in a free democratic
society. Fistorically the guarantees of free e&pression ere intended to provide some assurance that government ould remain responsive to the ill
of the people, in line ith the constitutional principle that sovereignty resides in the people and all government authority emanates from them.
4
"he
viability of a truly representative government depends upon the effective protection and e&ercise of the rights of the people to freely thin!, to freely
discuss and to freely assemble for redress of their grievances9 for these underlie the mechanisms of peaceful change in a democratic polity. "here is
ample authority in history for the belief that those ho value freedom, but are frustrated in its e&ercise, ill tend to resort to force and violent opposition
to obtain release from their repression. >o essential are these freedoms to the preservation and vitality of democratic institutions that courts have on
numerous occasions categori;ed them as occupying a 7preferred position7 in the hierarchy of civil liberties.
/
7"hat priority,7 intoned the court in !homas
v. Collins' supra, 7gives these liberties a sanctity and a sanction not per permitting dubious instrusions.7
"his is not to say that the rights of free e&pression and of peaceful assembly may not be constitutionally restricted by legislative action. No one
has seriously doubted that these rights do not accord immunity to every possible use of language or to every form of assembly. Circumstances may
arise in hich the safety, perhaps the very survival of our society, ould demand deterrence and compel punishment of homsoever ould abuse
these freedoms as ell as homsoever ould e&ercise them to subvert the very public order upon the stability of hich these freedoms depend.
... $t is a fundamental principle, long established, that the freedom of speech and of the press hich is secured by the Constitution
does not confer an absolute right to spea! or publish, ithout responsibility, hatever one may choose, or unrestricted or unbridled license
that gives immunity for every possible use of language and prevents the punishment of those ho abuse this freedom.
)5
"he right to freedom of speech, and to peaceful assembly and petition the government for redress of grievances, are fundamental
personal rights of the people recogni;ed and guaranteed by the constitutions of democratic countries. But it is a settled principle groing
out of the nature of ell ordered civil societies that the e&ercise of those rights is not absolute for it may be so regulated that it shall not be
in(urious to the e#ual en(oyment of others having e#ual rights, nor in(urious to the rights of the community or society. "he poer to regulate
the e&ercise of such and other constitutional rights is termed the sovereign 7police poer,7 hich is the poer to prescribe regulations, to
promote the health, morals, peace, education, good order or safety, and general elfare of people.
))
But in every case here there arises a clash beteen an assertion of >tate authority and the e&ercise of free speech and assembly, it is ultimate
the high function and duty of this court to locate the point of accomodation and e#uilibrium and dra the line beteen permissible regulation and
forbidden restraint.
$t is no conventional isdom that this function of delimitation and ad(ustment cannot meaningfully be carried out through the iteration of abstract
generali;ations. "he restriction that is assailed as unconstitutional must be (udged in the conte&t of hich it is part, ta!ing into account the nature and
substantiality of the community interest sought to be protected or promoted by the legislation under assay, in relation to the nature and importance of
the freedom restricted and the character and e&tent of the restriction sought to be imposed.
$$$
8arious standards have been evolved for the testing of the validity of a rule or regulation curtailing the rights of free speech, free press, and
peaceful assembly. At the earlier stages in the development of (urisprudence on the matter, it as said that the >tate has the poer to proscribe and
punish speech hich the >tate has the right to prevent.7
).
"he 7dangerous tendency7 rule, as this formulation has been called, found favor in many
decisions of this Court.
)6
$n the Dnited >tates, the 7dangerous tendency7 doctrine as early abandoned, and superseded by the 7clear and present danger7 rule. By the
year )/)/, the ma(ority of the members of the Dnited >tates >upreme Court got around to accepting -ustice FolmesC vie that 7the #uestion in every
case is hether the ords are used in such circumstances and are of such a nature as to create a clear and present danger that they ill bring about
the substantive evils that Congress has a right to prevent.7
)3
"o sustain legislation imposing limitations upon freedom of speech or of assembly, a court
must find that the evil sought to be avoided by the legislative restriction is both serious and imminent in high degree. As stated in Bridges v.
California*
)?
... the li!elihood, hoever great, that a substantive evil ill result cannot alone (ustify a restriction upon freedom of the speech or the press.
"he evil itself must be 7substantial7 ...9 it must be 7serious7 ....
Ghat clearly emerges from the 7clear and present danger7 cases is a or!ing principle that the substantive evil must be e&tremely
serious and the degree of imminence e&tremely high before utterances can be punished ...
"he 7clear and present danger7 rule has been cited ith approval, in at least to decisions of this Court.
)0
"he 7dangerous tendency7 and 7clear and present danger7 doctrines, it should not escape notice, ere fashioned in the course of testing
legislation of a particular type legislation limiting speech e&pected to have deleterious conse#uences on the security and public order of the community.
"he essential difference beteen the to doctrines related to the degree of pro&imity of the apprehended danger hich (ustified the restriction upon
speech. "he 7dangerous tendency7 doctrine permitted the application of restrictions once a rational connection beteen the speech restrained and the
danger apprehended H the 7tendency7 of one to create the other H as shon. "he 7clear and present danger7 rule, in contrast, re#uired the
:overnment to defer application of restrictions until the apprehended danger as much more visible until its reali;ation as imminent and nigh at hand.
"he latter rule as thus considerably more permissive of speech than the former, in conte&ts for the testing of hich they ere originally designed.
$n other types of conte&ts, hoever, here the 7substantive evil7 hich Congress see!s to avoid or mitigate does not relate to the maintenance of
public order in society, the ade#uacy or perhaps even the relevancy of these doctrines cannot be casually assumed. $t ould appear to me that one of
these conte&ts ould be that here the legislation under constitutional attac! interferes ith the freedom of speech and assembly in a more
generali;ed ay and here the effect of speech and assembly in terms of the probability of reali;ation of a specific danger is not susceptible even of
impressionistic calculation. $ believe that >ections ?5'A and ?5'B come ithin such conte&t. Congress enacted these provisions not because it feared
that speeches and assemblies in the course of election campaigns ould, probably or imminently, result in a direct breach of public order or threaten
national security. >ections ?5'A and ?5'B e&plicitly recogni;e that such speech and assembly are laful hile see!ing to limit them in point of time.
Foever useful the 7clear and present danger7 formulation as in the appraisal of a specific type of situation, there is fairly e&tensive 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 station and evaluation of the competing interests involved.
$n American Communications Ass,n v. 0ouds.
)1
the Dnited >tates >upreme Court une#uivocally said that 7in suggesting that the substantive evil
must be serious and substantial, it as never the intention of this Court to lay don an absolutist test measured in terms of danger to the Nation.7
Re(ecting the criterion of 7clear and present danger7 as applicable to a statute re#uiring labor union officers to subscribe to a non'communist affidavit
before the union may avail of the benefits of the @abor Management Relations Act of )/31, the Court, spea!ing through Chief -ustice 8inson, said*
Ghen particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is to determine hich of the to conflicting interests demands the greater protection under the
particular circumstances presented.... Ge must, therefore underta!e the delicate and difficult tas! ... to eigh the circumstances and to
appraise the substantiality of the reasons advanced in support of the regulation of the free en(oyment of rights....
)4
$n enunciating a standard premised on a (udicial balancing of the conflicting social values and individual interests competing for ascendancy in
legislation hich restricts e&pression, the court in 0ouds laid the basis for hat has been called the 7balancing'of'interests7 test hich has found
application in more recent decisions of the D.>. >upreme Court.
)/
Briefly stated, the 7balancing7 test re#uires a court to ta!e conscious and detailed
consideration of the interplay of interests observable in a given situation or type of situation.
.5
$n the actual application of the 7balancing'of'interests7 test, the crucial #uestion is* ho much deference should be given to the legislative
(udgment+ $t does not seem to me enough to say that this Court should not concern itself ith the isdom of a particular legislative measure but ith
the #uestion of constitutional poer. $ believe that e cannot avoid addressing ourselves to the #uestion hether the point of viable e#uilibrium
represented by the legislative (udgment embodied in R.A. 3445 is an appropriate and reasonable one, in the light of both the historic purpose of the
constitutional safeguards of speech and press and assembly and the general conditions obtaining in the community.
Although the urgency of the public interest sought to be secured by Congressional poer restricting the individualCs freedom, and the social
importance and value of the freedom so restricted, 7are to be (udged in the concrete, not on the basis of abstractions,7
.)
a ide range of factors are
necessarily relevant in ascertaining the point or line of e#uilibrium. Among these are AaB the social values and importance of the specific aspect of the
particular freedom restricted by the legislation9 AbB the specific thrust of the restriction, i.e., hether the restriction is direct or indirect, hether or not the
persons affected are fe9 AcB the value and importance of the public interest sought to be secured by the legislation H the reference here is to the
nature and gravity of the evil hich Congress see!s to prevent9AdB hether the specific restriction decreed by Congress is reasonably appropriate and
necessary for the protection of such public interest9 and AeB hether the necessary safeguarding of the public interest involved may be achieved by
some other measure less restrictive of the protected freedom.
..
$n my vie, the 7balancing'of'interests7 approach is more appropriately used in determining the constitutionality of >ections ?5'A and ?5'B. Both
the 7dangerous tendency7 and 7clear and present danger7 criteria have minimum relevancy to our tas! of appraising these provisions. Dnder these to
tests, the statute is to be assayed by considering the degree of probability and imminence ith hich 7prolonged election campaigns7 ould increase
the incidence of 7violence and deaths,7 7dominion of the rich in the political arena7 and 7corruption of the electorate.7 "his !ind of constitutional testing
ould involve both speculation and prophecy of a sort for hich this Court, $ am afraid, has neither the inclination nor any special competence.
$8
Applying the 7balancing'of'interests7 test or approach outlined above, $ am persuaded that Congress did not e&ceed constitutional limits in
enacting >ection ?5'A. "his >ection, it ill be recalled, ma!es it unlaful for any political party or group to nominate a candidate for an elective public
office earlier than the period of )?5 or /5 days, as the case may be, immediately preceding the election. No political party or group can claim a
constitutional right to nominate a candidate for public office at any time that such party or group pleases. "he party nomination process is a convenient
method devised by political parties and groups, as a means of securing unity of political action.
.6
As a device designed for e&pediency of candidates
and of political parties, the process of nomination H or at least the time aspect thereof H must yield to the re#uirements of reasonable regulations
imposed by the >tate. $t may be ell to note that in many (urisdictions in the Dnited >tates, the nomination of candidates for public office is regulated
and controlled in many aspects by statutes.
.3
Ghile the act of nominating a candidate has speech and assembly aspects, the restrictive effect of
>ection ?5'A ould appear negligible. "he reach of the statute is itself limited* it applies only to political parties, political committees or political groups,
leaving everyone else free from restraint. "he thrust of >ection ?5'A is also limited* it does not prohibit political parties from holding nominating
conventions or from doing any laful thing during such conventions9 hat it controls is the scheduling of the nominating conventions9 Ghile control of
the scheduling of conventions of course involves delimitation of the time period hich the formally revealed candidates have to convince the electorate
of their respective merits, those periods H )?5 days and /5 days H do not appear unreasonably short, at least not in this age of instantaneous and
mass media.
%n the other hand, the legitimacy and importance of the public interest sought to be promoted by >ection ?5'A must be conceded. Congress has
determined that inordinately early nominations by political parties or groups have the tendency of dissipating the energies of the people by e&posing
them prematurely to the absorbing e&citement of election campaigns as e !no them, and detracting from the attention that ought to be given to the
pursuit of the main tas! of a developing society li!e ours, hich is the achievement of increasing levels of economic development and social elfare.
"he rational connection beteen the prohibition of >ection ?5'A and its ob(ect, the indirect and modest scope of its restriction on the rights of
speech and assembly, and the embracing public interest hich Congress has found in the moderation of partisan political activity, lead us to the
conclusion that the statute may stand consistently ith and does not offend against the Constitution. "he interest of the community in limiting the period
of election campaigns, on balance, far outeighs the social value of the !ind of speech and assembly that is involved in the formal nomination of
candidates for public office.
8
$ reach a different conclusion ith respect to >ection ?5'B. Fere, the restraint on the freedoms of e&pression, assembly and association is direct.
E&cept ithin the 7open seen7 of ).5 and /5 days preceding the election, the statute prevents and punishes H by heavy criminal sanction H
speeches, ritings, assemblies and associations intended to promote or oppose the candidacy of any person aspiring for an elective public office, or
hich may be deemed a direct or an indirect 7campaign7 or as 7propaganda7 for or against a political party. "he prohibition reaches not only 7a relative
handful of persons97
.?
applies to an& person 7hether or not a voter or candidate,7 and to an& group of persons 7hether or not a political party or
political committee.7 "he effect of the la, therefore, is to impose a comprehensive and prolonged prohibition of speech of a particular content, e&cept
during the ).5 or 45 days, respectively, immediately preceding an election.
"hus, the moment any person announces his intention of see!ing an elective public office, 7regardless of hether or not said person has already
filed his certificate of candidacy or has been nominated by any political party as its candidate,7 >ection ?5'B ould become immediately operative.
>hould the aspirant ma!e !non his intention, say, one year before the election, the la forthith steps in to impose a 7blac!out,7 as it ere, of all
manner of discussion in support of or in opposition to his candidacy. "he lips of the candidate himself are by the threat of penal sanction sealed, and he
may not ma!e a speech, announcement, commentary, or hold an intervie to e&plain his claim to public office or his credentials for leadership until the
commencement of the period alloed for an 7election campaign.7 Neither may an& person, before that period, spea! out in open support or criticism of
his candidacy, for that ould constitute a prohibited commentary 7for or against the election of <a= candidate <albeit not a formally nominated candidate=
for public office,7 ithin the purvie of paragraph AcB of >ection ?5'B. $n practical effect, >ection ?5'B ould stifle comment or criticism, no matter ho
fair'minded, in respect of a given political party Ahether in our out of poerB and prospective candidates for office Ahether avoed or merely
intendingB, and ould abide all the citi;ens to hold their tongues in the meantime.
Ghat of the social value and importance of the freedoms impaired by >ection ?5'B+ "he legislation stri!es at the most basic political right of the
citi;ens in a republican system, hich is the right actively to participate in the establishment or administration of government. "his right finds e&pression
in multiple forms but it certainly embraces that right to influence the shape of policy and la directly by the use of ballot. $t has been said so many times
it scarcely needs to be said again, that the reali;ation of the democratic ideal of self'government depends upon an informed and committed electorate.
"his can be accomplished only by alloing the fullest measure of freedom in the public discussion of candidates and the issues behind hich they
rally9 to this end, all avenues of persuasion H speech, press, assembly, organi;ation H must be !ept alwa&s open. $t is in the conte&t of the election
process that these fundamental rigths secured by the Constitution assume the highest social importance.
.0
As to the formation of 7organi;ations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes andIor
underta!ing any campaign or propaganda for or against a party or candidate,7
.1
this is a right hich, li!e freedom of e&pression and peaceable
assembly, lies at the foundation of a libertarian and democratic society.
.4
As Professor Kauper has e&plained, ith characteristic lucidity*
Ghen e spea! of freedom of association e may, have reference to it in a variety of conte&ts.%robabl& the highest form of freedom
of association' at least as man& would see it' is the freedom to associate for political purposes b& means of organization of a political part&
and participation in its activities. !he effective functioning of a democratic societ& depends on the formation of political parties and the use
of parties as vehicles for the formulation and e.pression of opinions and policies. !he minorit& part& or parties become vehicles for
registering opposition and dissent. "he political party is the indispensable agency both for effective participation in political affairs by the
individual citi;en and for registering the diversity of vies in a pluralistic society. $ndeed, under some other constitutional systems political
parties are vieed as organs of government and have a high constitutional status.
./
Ge turn to the other end of the scales. As $ have herein before observed, the interest of the state in regulating partisan political activity, hich is
sought to, be secured by >ection ?5'B no less than by >ection ?5'A, is a legitimate one and its protection a proper aim for reasonable e&ercise of the
public poer. $ thin!, hoever, that that interest, important as it is, does not offset the restrictions hich >ection ?5'B imposes ith indiscriminate
seep upon the even more fundamental community interests embodied in the constitutional guarantees of speech, assembly and association. $ have
adverted to )ills v. Alabama here the Dnited >tates >upreme Court struc! don the Alabama Corrupt Practices Act to the e&tent that it prohibited,
under penal sanctions, comments and criticism by the press on election day. "he statutory provision there in #uestion )), not unli!e >ection ?5'B here,
as sought to be sustained in the interest of preserving the purity and integrity of the electoral process. "he restriction hich the Alabama statute
imposed upon freedom of speech and assembly ould seem an inconse#uential one H a restriction, imposed for one day, only one day, election day9
nevertheless, the Dnited >tates >upreme Court regarded such restriction as sufficient to outeigh the concededly legitimate purpose of the statute. Ge
can do no less in respect of restrictious of such reach, scope and magnitude as to ma!e the limitation of the Alabama statute appear, in comparison, as
an altogether trifling inconvenience.
$ndeed, if a choice is to be made beteen licentious election campaigns, hich >ection ?5'B see!s to curtail, and the mu;;ling, as it ere, of
public discussion of political issues and candidates, hich the provision ould effectuate, $ have no hesitancy in opting for the former. $t is the only
choice consistent ith the democratic process. 2ortunately, there is no need to choose beteen one and the other9 the dichotomy need not be a real
one. $ am not to be understood as holding that Congress may not, in appropriate instances, forbid the abusive e&ercise of speech in election
campaigns. "here is no constitutional immunity for a defamatory attac! on a public candidate. Neither is there protection for slander of public
officials.
65
$t has been held to be ithin the poer of the legislature to penali;e specifically the ma!ing, in bad faith, of false charges of rongdoing
against a candidate for nomination or election to public office,
6)
and to prohibit the publication or circulation of charges against such candidate ithout
serving him a copy of such charges several days before the election.
6.
>tatutes of this !ind have been sustained against broad claims of impairment of
freedom of speech and of the press.
66
7But it is an entirely different matter hen the >tate, instead of prosecuting <offenders= for such offenses, sei;es
upon mere participation in a peaceable assembly and a laful public discussion as a basis for criminal charge.
63
"hat remedies less destructive of the basic rights enshrined in the Constitution are not available, has notbeen shon. "he applicable principle
here has been formulated in the folloing terms*
... even though the governmental purposes be legitimate and substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowl& achieved. "he breadth of legislative abridgment must be vieed in
the light of less drastic means for achieving the same purpose.
6?
>ection ?5'B, as it ould casually lump together the activities of citizens e&ercising their constitutional rightsand those of politicians see!ing
the privilege of an elective office, is to broadly dran to satisfy the constitutional test. "he more pernicious aspects of our national preoccupation ith
7politics7 do not arise from the e&ercise, even the abuse, by the electorate of the freedoms of speech and of the press9 $ find it difficult to suppose that
these can be met by curtailing e&pression, assembly and association. "he great ma(ority of our people are too preoccupied ith demands upon their
time imposed by our generally marginal or submarginal standards of living. 7Politics,7 as $ see the contemporary scene, is a dominant pre'occupation of
only a handful of persons H the politicians, the professional partymen. $f the people at large become involved in the heat and clamor of an election
campaign, it is ordinarily because they are unduly provo!ed or frenetically induced to such involvement by the politicians themselves. As it is, the great
masses of our people do not spea! loud enough H and, hen they do, only infre#uently H about our government. "he effect of the ban on speech
ould serve only to further chill constitutionally protected conduct on their part hich, instead of being suppressed, should on the contrary be
encouraged.
$t is not amiss to observe here that the ma!ing of politically oriented speeches and the dissemination of similar literature, hile they may divert
the energies of those ho ma!e or rite them and their audiences, ould appear to me to be among the less pernicious aspects of our national
preoccupation ith 7politics.7 "he more dangerous aspects of our national preoccupation probably occur in privacy or secrecy and may be beyond the
reach of measures li!e >ection ?5'B.
$t is argued in defense of the statute, nonetheless, that under the to provisos of >ection ?5'B, 7simple e&pressions of opinion and thoughts
concerning the election7 and e&pression of 7vies on current political problems or sues,7 including mentioning the names of candidates for public
offices hom one supports, are not prohibited9 hence, freedom of e&pression is not unconstitutionally abridged by >ection ?5'B.
"his argument is gravely flaed by the assumption that 7simple e&pressions of opinion7 and 7vies on current political problems7 cover the hole
reach of the relevant constitutional guarantees. Ghat about the rights of assembly and laful association+ As to freedom of e&pression that cannot be
confined to the realm of abstract political discussions. $t comprehends e&pression hich advocates action, no less than that hich merely presents an
academic viepoint. $ndeed, the value of speech in a democratic society lies, in large measure, in its role as an instrument of persuasion, of
consensual action, and for this reason it must see! to move to action by advocacy, no less than by mere e&position of vies. $t is not mere coincidence
that the farmers of our Constitution, in protecting freedom of speech and of the press against legislative abridgment, coupled that freedom ith a
guarantee of the right of the people to peaceably assemble and petition the government for the redress of grievances. "he right of peaceful assembly
for the redress of grievances ould be meaningless and hollo if it authori;ed merely the public e&pression of political vies, but not the advocacy of
political reforms H even changes in the composition of the elective officialdom of the administration.
"here is another, e#ually basic, difficulty that vitiates the avoed constitutional utility of the provisos appended to >ection ?5'B. Dnder the first
proviso, it 7simple e&pressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign.7 2rom the
precise use of the ord 7simple7 may be rationally dran an inference that 7non'simple7 e&pressions fall ithin the proscription of election campaigns.
But the la conspicuously fails to lay dan a standard by hich permissible electioneering. Fo simple is 7simple7+ $n the absence of such a standard,
every spea!er or riter ishing to ma!e publicly !non his vies concerning the election and his preferences among the candidates, must spea! at his
on peril. Fe could carefully choose his ordCs ith the intention of remaining ithin the area of speech left permissible by >ection ?5'B. But, in the
nature of things, hat and ho can provide him assurance that his ords, 7simple e&pressions of opinion and thoughts concerning the election7 as they
may be, ill not be understood by his audience or at least by some of them, or by the prosecuting officers of the :overnment, or by the courts even, as
a 7speech7 or 7commentary7 7for or against the election of ... a candidate for public office,7 or at least an indirect solicitation of votes+
$t is pertinent to advert to the "e&as statute involved in !homas v. Collins' supra, as illustrative of the vice of vagueness that e find in >ection
?5'B. "he "e&as statute re#uired all labor union organi;ers to first obtain organi;erCs cards from the >ecretary of >tate 7before soliciting any members
for his organi;ation,7 and authori;ed the courts to compel compliance by the issuance of court processes. "homas, the president of a nationide labor
union, came to Fouston to address a mass meeting of employees of an oil plant hich as undergoing unioni;ation9 but si& hours before he as
scheduled to spea!, he as served ith a court order restraining him from soliciting members for the local union hich as affiliated ith his
organi;ation, ithout first obtaining an organi;erCs card. 2or disobeying the restraining order, he as found in contempt of court. "he D.>. >upreme
Court, reversing his conviction, found the registration re#uirement an invalid restraint upon free speech and free assembly, thus*
"hat there as restriction upon "homasC right to spea! and the rights of the or!ers to hear hat he had to say, there can be no
doubt. "he threat of the restraining order, bac!ed by the poer of contempt, and of arrest for crime, hung over every ord. A spea!er in
such circumstance could avoid the ords 7solicit,7 7invite,7 7(oin7. $t ould be impossible to avoid the idea. "he statute re#uires no specific
formula. $t is not contended that only the use of the ord 7solicit7 ould violate the prohibition. Githout such a limitation, the statute forbids
any language hich conveys, or reasonably could be found to convey, the meaning of invitation. "hat "homas chose to meet, the issue
s#uarely, not to hide in ambiguous phrasing, does not counteract this fact. :eneral ords create different and often particular impressions
on different minds. No spea!er, hoever careful, can convey e&actly his meaning, or the same meaning, to the different members of an
audience. Fo one might 7land unionism,7 as the >tate and the >tate >upreme Court concedes "homas as free to do, yet in these
circumstances not imply an invitation, is hard to conceive. "his is the nub of the case, hich the >tate fails to meet because it cannot do so,
Gor!ingmen to do lac! capacity for ma!ing rational connections. "hey ould understand, or some ould, that the president of D.A.G. and
vice president of C.$.%. addressing an organi;ation meeting, as not urging merely, a philosophy attachment to abstract principles of
unionism, disconnected from the business immediately at hand. "he feat ould be incredible for a national leader, addressing such a
meeting, lauding unions and their principles, urging adherence to union philosophy, not also and thereby to suggest attachment to the union
by becoming a member.
2urthermore, hether ords intended and designed to fall short of invitation ould miss that mar! is a #uestion, of intent and of
effect. No spea!er, in such circumstance safely could assume that anything lie might say upon the general sub(ect ould not be understood
by as an invitation. /n short' the supposedl& clear+cut distinction between discussion and laudation' general advocac&' and solicitation puts
the spea*er in these circumstance wholl& at the merc& of the varied understanding of his hearers and conse1uentl& of whatever inference
ma& be drawn as to his intent and meaning.
Such a distinction offers no securit& for free discussion. /n these conditions it blan*ets with uncertaint& whatever ma& be said. /t
compels the spea*er to hedge and trim. Fe must ta!e care in every ord to create no impression that he means, in advocating unionismCs
most central principle, namely, that or!ingmen should unite for collective bargaining, to urge those present to do so. !he vice is not
merel& that invitation' in the circumstances shown here' is speech. /t is also that its prohibition forbids or restrains discussion which is not or
ma& not be invitation. !he sharp line cannot be drawn surel& or securel&. !he effort to observe it could not be free speech' free press' or
free assembl&' in an& sense of free advocac& of principle or cause. "he restrictionCs effect, as applied, in a very practical sense as to
prohibit "homas not only to solicit members and memberships but also to spea! in advocacy of the cause or trade unionism in "e&as,
ithout having first procured the card. "homas !ne this and faced the alternatives it presented.2hen served with the order he had three
choices3 4#5 to stand on his right and spea* freel&6 475 to 1uit' refusing entiret& to spea*6 485 to trim' and even thus to ris* the penalt&. 9e
chose the first alternative. 2e thin* he was within his lights in doing so.
60
"he realism of the approach and reasoning employed in !homas v. Collins commends itself9 $ thin! this !ind of realism should be applied to the
tas! of appraising >ection ?5'B. >ection ?5'B forbids 7directly or indirectly soliciting votes andIor underta!ing any campaign or propaganda for or
against any candidate or party,7 including any language 7for or against the election of any party or candidate for public office,7 e&cept ithin the
specified periods preceding the election.
$f a minority political party ere to hold a mass rally at Pla;a Miranda ithin the prohibited period of an election year, for the purpose of publicly
e&pressing their criticism of the party in poer, it is unthin!able that the public speeches delivered during the occasion ill not understood, by many if
not by all, as a direct or an indirect campaign or propaganda against a political party, as ell as a direct or an indirect solicitation of votes. "he
audience ill certainly understand the occasion, not as a forum for indulging in criticism for criticismCs sa!e, nor as a 7simple7 discussion of political,
philosophy, but as an invitation to unseat the party in poer at the ne&t election. $f, upon the other hand, the minority party should control one or both
Fouses of Congress and, for selfish partisan motives, oppose all or a ma(or portion of the significant measures sponsored by the Administration,
regardless of their merits, for the purpose of obtaining political partisan advantage, the Chief e&ecutive ould, during the restricted period, find himself
hampered in vigorously placing blame s#uarely on such minority party. "he Administration Aand this includes the Chief E&ecutive himselfB ould be
hard put to appeal to public opinion to e&ert pressure on the legislature to gain support for hat it may honestly believe to be constructive measures
sorely needed to promote the countryCs progress. "he right of any party or politician to appeal to public opinion cannot be assailed9 yet, hen ould
such an appeal, in hich the opposition may have to be several critici;ed not constitute a violation of >ection ?5'B+ Actual, pre'ar and postar
e&perience has shon that in a number of instances, the Chief E&ecutive and leaders of his administration had to mobili;e public opinion Alargely
e&pressed through the pressB to frustrate hat they regarded as a calculated scheme the opposition party of unreasonably interposing obstacles to a
ma(or part of essential legislation. $t ould indeed be most difficult to determine ith e&actitude hat utterances of the Administration leaders, including
the Chief E&ecutive himself, ould or ould not constitute propaganda 7for or against a political part&.7
Dnder these circumstances, $ find the contraposition in >ection ?5'B beteen 7e&pressions of opinion,7 on the one hand, and 7solicitation7 and
7campaign or propaganda,7 on the other, as too uncertain and shifting a line of distinction to be of any practical utility either to the citi;en or official ho
must spea! at his on peril or to the prosecutors and the courts ho must enforce and apply the distinction.
Paragraph AfB of >ection ?5'B is tautological and #uestion'begging. $t defines :election campaign7 as 7giving, soliciting, or receiving contributions
for election campaign purposes, either directly or indirectly.7 $nsofar, therefore, as the phrase 7election campaign purposes7 in paragraph AfB depends
for its meaning on the preceding paragraphs AaB, AbB, AcB, AdB andAeB, paragraph AfB li!eise suffers from constitutional infirmity. Dpon the other hand, if
the meaning of paragraph AfB be that the act of soliciting, giving or receiving contributions for the purpose of advancing the candidacy of a person or
party is 7campaigning,7 then it is (ust as must a curtailment of the freedom of thought that the Constitution vouchsafes to every citi;en.
"he foregoing dis#uisition could be compressed into the compelling perspective of this simple admonition* that 7speech concerning public affairs
is more than self'e&pression9 it is the essence of self'government.7
61
$n sum and substance, it is my considered vie that >ection ?5'B of the Revised Election Code constitutes an unconstitutional abridgment of the
freedoms of speech, of the press, of peaceful assembly, and of laful association.
$ vote for its total e&cision from the statute boo!s.
0izon' ;aldivar and Capistrano' ((.' concur.