SUPREME COURT DECISIONS

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DISSENTING OPINION

KAPUNAN, J.:

I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is technically moot. Since the Comelec has not declared exit polls to be illegal and neither did the petitioner present its methodology or system of conducting the exit polls to the poll body, the nullification of the Comelec's questioned resolution is bereft of empirical basis. The decision of this Court constitutes a mere academic exercise in view of the premature nature of the issues and the lack of "concreteness" of the controversy. I wish, however, to express my thoughts on a few material points.

The majority opinion cites the general rule that any restrictions to freedom of expression would be burdened with a presumption of invalidity and should be greeted with "furrowed brows."¹ While this has been the traditional approach, this rule does not apply where, as in this case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots and ensuring the integrity of the elections.. Thus, Mr. Justice Feliciano in National Press (NPC) v. Comelec² wrote:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of supervisory or regulatory authority on the part of the COMELEC for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the right of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time honored one - that a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion.³cräläwvirtualibräry

The NPC decision holds that if the right to free speech collides with a norm of constitutional stature,⁴ the rule on heavy presumption of invalidity does not apply.

Our Constitution mandates the Comelec to enforce and administer laws and regulations relative to the conduct of elections and to secure the secrecy and sanctity of the ballots to ensure orderly, honest, credible and peaceful elections.⁵ This Constitutional provision effectively displaces the general presumption of invalidity in favor of the presumption that Comelec acted in the exercise of its constitutionally mandated powers. If no presumption of invalidity arises, I see no occasion for the application of the "clear and present danger test." As this Court, through Mr. Justice Mendoza, succinctly observed:

x x x the clear-and-present danger test is not, however, a sovereign remedy for all free speech problems. As has been pointed out by a thoughtful student of constitutional law, it was originally formulated for the criminal law and only later appropriated for free speech cases. For the criminal law is necessarily concerned with the line at which innocent preparation ends and guilty conspiracy or attempt begins. Clearly, it is inappropriate as a test for determining the constitutional validity of law which, like 11(b) of R.A. No. 6646, are not concerned with the content of political ads but only with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed.⁶cräläwvirtualibräry

On the matter of methodology in conducting polls, petitioner gave assurance that the exit poll results will only be made public a day after the elections, in order to allay fears of "trending," "bandwagon-effect" or disruption. This offers little comfort considering the state of our country's electoral system. Unlike in other countries where voting and counting are computerized, our elections are characterized by snail-paced counting. It is not infrequent that postponement, failure or annulment of elections occur in some areas designated as election hot spots.⁷ Such being the case, exit poll results made public after the day of voting in the regular elections but before the conduct of special elections in these areas may potentially pose the danger of "trending," "bandwagon- effect" and disruption of elections.

In view of the foregoing discussion, I believe the Comelec committed no abuse of discretion in issuing the assailed temporary restraining order stopping petitioner from conducting exit polls. I, therefore, vote to DENY the petition.

¹ Iglesia ni Cristo v. MTRCB, 259 SCRA 529 (1996)

² 207 SCRA 1 (1992)

³ Ibid., citing as examples: Abbas vs .Commission on Elections, 179 SCRA 287 (1989); People v. Dacuycuy, 173 SCRA 90 (1989); Heirs of Ordera v. Reyes, 125 SCRA 380 (1983) (sic); Peralta v. Commission on Elections, 82 SCRA 30 (1978); Salas v. Jarencio, 46 SCRA 734 (1972)

⁴ The norm embodied in article IX (C) (4) of the Constitution in the NPC case aims to equalize opportunity, time and space, and the right to reply in the use of media for campaign purposes.

⁵ CONST. art V, sec. 2; art IX (C), sec. 2 (1)

⁶ Osmea vs .Comelec, 288 SCRA 447 (1998)

⁷ BATAS PAMBANSA BLG. 881 (as amended), secs. 5 & 6 and R.A. No. 7166, sec. 4. These situations are replete with cases; see for e.g. Hassan v. Comelec, 264 SCRA 125 (1996); Sanchez v. Comelec, 145 SCRA 454 (1982); Mangudadatu v. Comelec, G.R. No. 86053, May 4, 1989; Barabu vs .Comelec, G.R. No. 78820, May 17, 1988.