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CONCURRING OPINION

PANGANIBAN, J.:

I concur in the well-written ponencia of Mr. Justice Vicente V. Mendoza holding that Section 5.4 ¹ of Republic Act (RA) No. 9006 is unconstitutional. The provision is a patent infringement of the fundamental freedoms of expression and of the press.

In the recent case ABS-CBN Broadcasting Corporation v. Commission on Elections, ² the Court en banc junked Comelec Resolution No. 98-1419 dated April 21, 1998, which restrained the conduct of exit polls, a species of electoral surveys. We held that the holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. They cannot be banned totally in the guise of promoting clean, honest, orderly an credible elections. Quite the contrary, exit polls -- properly conducted and publicized -- can be vital tools in eliminating the evils of election-fixing and fraud. As mankind pushes the frontiers of science and technology in mass communications, so must the scope of free expression expand ³ to cover the conduct and the publication of surveys.

In said case, we visited the long-standing fundamental principle underlying democracies that the freedom of expression is a preferred right, standing on a higher level than other substantive liberties. Indeed, as this nation has recently witnessed once again, lessons of history, both political and leagal, illustrate that freedom of thought and speech is an indispensable condition of nearly every other form of freedom. ⁴ Thus, our Constitution explicitly mandates that no law shall be passed abridging the freedoms of speech and of the press. ⁵cräläwvirtualibräry

While the exercise of these basic rights could not be absolute liberty is never absolute -- but may be subject to regulation by the state, any limitation should be justified by a clear and present danger of such substantive character that the state has a right to prevent. ⁶ In other words, the evil sought to be avoided must be so substantive as to justify a clamp over ones mouth or a restraint of a writing instrument. ⁷cräläwvirtualibräry

There is, however, no compelling or justifiable reason for the prohibition made by congress under the assailed law. The Comelec also utterly fails to convince me that a substantive danger, which the state has a right to prevent, lies lurking and threatening to explode if ignited by the conduct and the dissemination of the prohibited surveys.

No lover of freedom, no guardian of the Constitution and no advocate of democracy can agree to this unreasonable restraint.

Indeed, Daily Herald Co. v. Munro ⁸ held that the general interest of the state in insulating voters from outside influences is insufficient to justify speech regulation.

WHEREFORE , I vote to GRANT the Petition and to DECLARE SECTION 5.4 OF RA 9006 UNCONSTITUTIONAL.

¹ Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

² 323 SCRA 811, January 28, 2000.

³ Panganiban, Transparency, Unanimity & Diversity, 2000 ed., p. 376.

⁴ Supra, citing Salonga v. Cruz Pano, 134 SCRA 438, 458-459, February 18, 1985. See also Gonzales v. Comelec, 27 SCRA 835, 849, 856-857, April 18, 1969; Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191, June 5, 1973; National Press Club v. Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v. Comelec, 207 SCRA 712, 715, March 31, 1992.

⁵ Sec. 4, Art. III, Constitution.

⁶ See Priomicias v. Fugoso, 80 Phil. 71 (1948); American Bible Society v. City of Manila; 101 Phil. 386 (1957); Iglesia ni Cristo v. MTRCB, 259 SCRA 529, July 26, 1996.

⁷ Adiong v. Comelec, supra.

⁸ 838 F 2d 380 (9^th Cir. 1988), cited in ABS-CBN v. Comelec, supra.