“Comelec threatens suit vs SWS, Pulse Asia et al.,” went the title of an Inquirer news report last June 16. What is this all about?
This harassment started from the demand of the United Nationalist Alliance (the coalition that went on to lose the May 2013 elections) that SWS and Pulse Asia disclose the names of subscribers of their election surveys.
This demand was answered in my column “Subscribers do not pay for SWS to do a survey” (Inquirer, 4/18/2013), as well as in “SWS’ comment to UNA’s petition re violation of Comelec Resolution No. 9615,” (www.sws.org.ph, 4/19/2013), citing jurisprudence to argue that “freedom of expression in publishing survey reports should not be harassed by means of unreasonable requirements such as requiring the disclosure of subscribers who had nothing to do with the inclusion of the specific questionnaire item whose results were published.”
[For the jurisprudence that opinion polling is covered by the constitutional guarantee of freedom of expression, see Chief Justice Artemio V. Panganiban, “ABS-CBN v. Comelec—A New Paradigm of Free Expression,” in his book “Transparency, Unanimity and Diversity” (Supreme Court Press, 2000) and “Social Weather Stations v. Comelec: May Election Surveys Be Banned?” in his book “A Centenary of Justice” (Supreme Court Press, 2001).]
However, Comelec Resolution No. 9674 (issued on April 23, 2013, but with no full official copy received by us to date) brushed aside our arguments, saying in its ‘whereas’ clauses that: “the Commission interprets and so rules that the requirement in the law to publish ‘the name of the person, candidate, party or organization who commissioned or paid for the survey’ covers ‘subscribers’ who pay substantial amounts of money to survey firms for access to survey results and privileged survey-related data” and “the Commission posits that these subscription fees/payments become part of the income of survey firms which in turn is used to fund/finance or pay for election surveys; these ‘subscribers’ are indirectly, yet effectively, the ‘payors’ of the surveys and should be disclosed.”
Another questionable clause in Resolution 9674 is: “Whereas, the Commission likewise reiterates that the amount spent by candidates and political parties for surveys, including subscriptions, forms part of their campaign expenditures which must be disclosed by the candidates and reported by the survey firms to COMELEC pursuant to Resolution No. 9476.” Where is the law that implies that campaign expenditures include surveys? Unless the Comelec can track confidential surveys, this will be just another way to harass the nonconfidential surveys that truly perform a public service.
Consequently, the legal counsels of SWS and Pulse Asia wrote Comelec Chair Sixto Brillantes a joint letter on April 30 making our position clear: (1) that Resolution 9674 offends the Constitution, existing law, and jurisprudence; (2) that it is arbitrary, oppressive, and exceeds the powers vested by law on the Comelec; (3) that it constitutes undue state interference with contractual relations; and (4) that it tramples on the rights of free expression and access to information on matters of public concern.
The same letter (formally received by the Comelec on May 2, 2013) requested it to defer enforcement of Resolution 9674 because SWS and Pulse Asia will elevate the matter to the Supreme Court and seek injunctive relief from the high court.
The only response to SWS or Pulse Asia from the Comelec since then was not the Resolution, but a Comelec Notice of its dispositive portion only. Yet Chair Brillantes threatened last June 16, before the media, to file criminal charges against us. To this our joint response is: “Comelec has yet to formally furnish SWS and Pulse Asia with Resolution No. 9674” (6/18/2013, www.sws.org.ph).
Our June 18 statement says: “Resolution No. 9674 gave SWS and Pulse Asia three (3) days ‘from receipt of this Resolution’ to submit the names of all commissioners and payors of surveys. Comelec, however, up to the present has not furnished SWS and Pulse Asia with a copy of the Resolution. Thus, insofar as SWS and Pulse Asia are concerned, the period to comply with Resolution No. 9674 has not begun.”
“So what defiance is Chair Brillantes talking about? This also explains why SWS and Pulse Asia have not as yet questioned Resolution No. 9674 before the Supreme Court.”
The Comelec itself allowed a certain period of time, from our receipt of the Resolution, to comply with it. Publication in a newspaper cannot substitute for our receipt of the Resolution itself. Even after our formal receipt of the full Resolution, SWS and Pulse Asia have 30 days to elevate the matter to the Supreme Court.
[Article IX(A), Section 7, of the Constitution states: “Each [Constitutional] Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.”]
SWS and Pulse Asia are confident that our case will prosper, when we elevate the issue to the Supreme Court.
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