Unconstitutional Comelec restrictions

Unconstitutional, unfair and unwise in my humble view is the resolution of the Commission on Elections (Comelec) restricting candidates for national posts (senators and party-lists) to an “aggregate total” of only 120 minutes of TV ads and 180 minutes of radio ads for all stations. Candidates for local positions were given a maximum of 60 minutes of TV ads and 90 minutes of radio ads. Due to my limited space, let me just discuss for now the TV limits on national candidates.

First, a brief backgrounder. Section 6 of the Fair Elections Act (RA 9006) provides that “[a]ll registered parties and bona fide candidates shall have equal media time and space… [and] shall be entitled to not more than 120 minutes of television advertisement and 180 minutes of radio advertisement…”

Unfortunately, the Comelec has implemented this provision in varying, perplexing ways. For the 2001 elections, it gave national candidates 120 TV minutes for the “entire duration of the campaign period.” For the succeeding 2004, 2007 and 2010 elections, the Comelec issued various resolutions confining the 120 TV minutes to a “per station basis.”

However, for the May 13 elections, the Comelec abandoned the “per station” interpretation. Instead, it imposed “an aggregate total” of 120 TV minutes regardless of the number of stations or networks used for the entire campaign period.

To stress, during the entire political campaign of 87 days from Feb. 12 to May 11 (minus Maundy Thursday and Good Friday when campaigning is banned), each national candidate will have only 120 TV minutes or 7,200 seconds, which translate to only 82.75 seconds per day for all networks. Note that TV (and radio) ads are measured in seconds, not minutes.

According to the National Telecommunications Commission, there are 372 national and regional TV stations plus 1,113 cable TV providers, all over the country (as of June 2012). Obviously, all these stations cannot be used by every candidate. But even if exposure were limited to only the three major networks (Channels 2, 5 and 7), the candidate would have only 27.58 seconds per network per day. This is barely enough for only one—yes, one—TV spot of 30 seconds.

Unconstitutional. This draconian reduction impinges heavily on the people’s right to public information and the candidates’ constitutional right to free expression. Stated differently, the new Comelec rule suppresses the people’s right to know their candidates, and the aspirants’ right to inform the electorate of their qualifications and platforms of government.

Chavez vs Gonzales (Feb. 15, 2008, penned by Chief Justice Reynato S. Puno) reiterated the doctrine that freedom of expression is a preferred right that stands higher than other liberties. Specifically, “a governmental action that restricts freedom of speech and of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule.”

In his concurring opinion, Justice Antonio T. Carpio stressed that the right to free speech “is not subject to prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged.”

More emphatically, ABS-CBN vs Comelec (Jan. 28, 2000, penned by yours truly) held: “When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom.”

Freedom of expression includes all forms of speech disseminated or amplified by technological tools, like loudspeakers, printing presses, TV, radio, Internet, cinema, opinion polls, and social media, whether donated, used free of charge or paid for. It also includes nonverbal modes, like strikes, picketing, placards and billboards.

Unfair and unwise. To justify the imposition of its new rule, the Comelec said it wanted “to limit and prevent abuses of excessive propaganda from rich candidates.” Ironically, however, the severe restrictions deprive new and poor candidates of adequate TV access, the most potent and most economical way of reaching the most number of voters.

For example, a 30-second ad placed on Channel 7’s “Kapuso Mo Jessica Soho” could on the average reach 9,509,573 people. This calculation is derived from reports of Nielsen Philippines, the TV-radio rating firm used by most advertisers. Using the usual single ad rate of P419,265, the average cost per person would only be four centavos. Other programs are cheaper but reach fewer people.

All told, TV is more cost-efficient and more pervasive than town rallies, helicopter hops, and nationwide distribution of election propaganda. Given the short campaign period of 87 days, TV is the fastest, most effective and least expensive way of reaching the country’s 50 million voters.

Moreover, the new rule disadvantages unknown but qualified candidates and favor celebrities, media hotshots and incumbents. It also favors dynastic candidates who depend on the name recall of their kin. All these celebrities, media hotshots, incumbents and dynastic candidates will not need as much TV exposure as the newcomers.

Finally, there are other ways of leveling the political playing field, like the restriction on campaign expenses, which the Comelec could implement without violating constitutional rights and without disadvantaging new, poor and lesser-known candidates.

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