SARMIENTO VS. COMELEC 212 SCRA [1992]

FACTS:

Petitioner impugn the resolution of the Comelec as having been issued with grave abuse of discretion in the, inter alias, the Commission sitting en bane, took cognizance and decided the appeals without first referring them to any of its division.

ISSUE:

Whether or not the Comelec en banc has the jurisdiction over the said resolution.

HELD:

Sec. 3 Art IX-C of the 1987 Constitution expressly provides:

'The Comelec may sit en banc or in two divisions, and shall promulgate its

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rule of procedure in order to expedite disposition of election cases, including pre proclamation controversies. All such election cases shall be heard and decided in division, provided that the motions for reconsideration of decisions shall be decided by the Commission en bane.'

It is clear that election cases include pre proclamation controversies and all. such cases must first be heard and decided by a Division of the Commission. The Commission sitting en bane does not have the authority to hear and decide the same at the first instance. In the Comelec Rules of Procedures, pre proclamations are classified as special cases and in compliance with the provision of the constitution, the two divisions of the Commissions are vested with the authority to hear and decide these special cases. Rule 127 thereof governs special cases, especially See 9 of the said Rule provides that appeals from ruling of the assigned and not by the Commission en bane.

Indisputably then, the Comelec en banc acted without jurisdiction or with grave abuse of discretion, when it resolved the appeals of petitioners ion the special cases without first referring them to any of its divisions.

Accordingly, the instant petitions are dismissed without prejudice to the filing by petitioners of regular election protests.

ARTICLE IX - CONSTITUTIONAL COMMISSIONS C. COMMISSION ON ELECTIONS

REYES VS. REGIONAL TRIAL COURT OF ORIENTAL MINDORO (G.R. NO. 108886, MAY 5, 1995)

MENDOZA, J.:

FACTS:

Petitioner Aquiles Reyes and private respondent Adolfo Comia were candidates for the position of member of the Sangguniang Bayan of Naujan, Oriental Mindoro in the May 11, 1992 synchronized elections. On May 13, 1992, during the proceedings of the Municipal Board of Canvassers, private respondent moved for the exclusion of certain election returns, on the ground of serious irregularity in counting in favor of petitioner Aquiles Reyes votes cast for "Reyes" only, considering that there was another candidate (Epitacio Reyes) bearing the same surname. However, without resolving his petition, the Municipal Board of Canvassers proclaimed on the same day petitioner as the eighth winning candidate with 7,205 votes. On May 25, 1992 petitioner took his oath of office. Private respondent later filed an election protest before the trial court. He alleged that "a vital mistake [had been] committed by the Board of Canvassers in the mathematical computation of the total number of votes garnered by petitioner [now private respondent]. Petitioner filed a motion to dismiss private respondent's petition on the ground that it was filed beyond the reglementary period of ten days from proclamation, which petition was denied by the trial court.

On June 23, 1992, the trial court rendered its decision annuling the proclamation of petitioner and declaring private respondent as the eighth winning candidate for the position of councilor of the Sangguniang Bayan of Naujan, Oriental Mindoro. A copy of the decision was served on petitioner on June 26, 1992.

Petitioner filed a notice of appeal to the COMELEC. In addition, he filed a petition for mandamus and prohibition in the Court of Appeals, to compel the Sangguniang Bayan to recognize him as the duly proclaimed member of that body and prohibit it from further recognizing private respondent. The Court of Appeals dismissed the petition because of petitioner's pending appeal in the COMELEC. The appellate court cited Supreme Court Circular 28-91 which prohibits the filing of multiple petitions involving the same issues. Petitioner filed a motion for reconsideration but his motion was denied. The appellate court's decision became final and executory on December 10, 1992.

Meanwhile, the Sangguniang Bayan met in inaugural session on July 3, 1992, during which private respondent was recognized as the eighth member of the body and thereafter allowed to assume office and discharge its functions.

On the other hand, the COMELEC's First Division dismissed on January 22, 1993 petitioner's appeal on the ground that he had failed to pay the appeal fee within the prescribed period.

Petitioner then brought the present action. Petitioner contends that both the trial court and the COMELEC's First Division committed a grave abuse of discretion, the first, by assuming jurisdiction over the election contest filed by private respondent despite the fact that the case was filed more than ten days after petitioner's proclamation, and the second i.e., the COMELEC's First Division, by dismissing petitioner's appeal from the decision of the trial court for late payment of the appeal fee.

ISSUE: Whether or not the petitioner violated Article IX A of the Constitution.

HELD:

Yes, petitioner violated Article IX A of the Constitution which provides that only decisions of the COMELEC en banc may be brought to the Supreme Court on certiorari. In the present case, he filed the present petition without first filing a motion for reconsideration before the COMELEC en banc.

It is now settled that in providing that the decisions, orders and rulings of COMELEC "may be brought to the Supreme Court on certiorari" the Constitution in its Art. IX, A, §7 means the special civil action of certiorari under Rule 65, §1. Since a basic condition for bringing such action is that the petitioner first file a motion for reconsideration, it follows

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that petitioner's failure to file a motion for reconsideration of the decision of the First Division of the COMELEC is fatal to his present action.

Petitioner argues that this requirement may be dispensed with because the only question raised in his petition is a question of law.

This is not correct. The questions raised by petitioner involve the interpretation of constitutional and statutory provisions in light of the facts of this case. The questions tendered are, therefore, not pure questions of law.

Moreover, that a motion for reconsideration before the COMELEC en banc is required for the filing of a petition for certiorari is clear from Article 9C pars. 2 & 3 of the Constitution:

Conformably to these provisions of the Constitution all election cases, including pre-proclamation controversies, must be decided by the COMELEC in division. Should a party be dissatisfied with the decision, he may file a motion for reconsideration before the COMELEC en banc. It is, therefore, the decision, order or ruling of the COMELEC en banc that, in accordance with Art. IX, A, §7, "may be brought to the Supreme Court on certiorari."

ARTICLE IX - CONSTITUTIONAL COMMISSIONS C. COMMISSION ON ELECTIONS

NATIONAL PRESS CLUB VS. COMMISSION ON ELECTIONS (G.R. NO. 102925 MARCH 5, 1992)

FELICIANO, J.:

FACTS:

This is a consolidation of three cases filed before the Supreme Court which involves the same issue. Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the other for provincial office) in the May 1992 elections; and taxpayers and voters who claim that their right to be informed of election issues and of credentials of the candidates is being curtailed. It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to censorship, because it selects and singles out for suppression and repression with criminal sanctions, only publications of a particular content, namely, media- based election or political propaganda during the election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide adequate channels of public information and public opinion relevant to election issues. Further, petitioners contend that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio and television broadcasts, would bring about a substantial reduction in the quantity or volume of information concerning candidates and issues in the election thereby curtailing and limiting the right of voters to information and opinion.

ISSUE: Whether or not Section 11(b) of Republic Act No. 6646 runs contradictory to Articles III [4] and IX (C) (4) of the Constitution.

HELD:

The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests." Section 11 (b) prohibits the sale or donation of print space and air time "for campaign or other political purposes"

except to the Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to procure "Comelec space" in newspapers of general circulation in every province or city and "Comelec time" on radio and television stations.

Further, the Comelec is statutorily commanded to allocate "Comelec space" and "Comelec time" on a free of charge, equal and impartial basis among all candidates within the area served by the newspaper or radio and television station involved.

It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election period."

It is important to note that the restrictive impact upon freedom of speech and freedom of the press of Section 11 (b) is circumscribed by certain important limitations: [1] Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. By its Resolution No. 2328 dated 2 January 1992, the Comelec, acting under another specific grant of authority by the Constitution (Article IX [C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as the relevant election period; [2]

Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows that it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, ⁴ of print space and air time for "campaign or other political purposes." Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications, political parties and programs of government; [3] Section 11 (b) exempts from its prohibition the purchase by or donation to the Comelec of print space or air time, which space and time Comelec is

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then affirmatively required to allocate on a fair and equal basis, free of charge, among the individual candidates for elective public offices in the province or city served by the newspaper or radio or television station.

Some of the petitioners are apparently apprehensive that Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal basis among the several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by unequal or unfair allocations effected by Comelec will have appropriate judicial remedies available, so long at least as this Court sits. Until such time, however, the Comelec is entitled to the benefit of the presumption that official duty will be or is being regularly carried out. It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral Commission ⁷ that the possibility of abuse is no argument against the concession of the power or authority involved, for there is no power or authority in human society that is not susceptible of being abused. Should it be objected that the Comelec might refrain from procuring "Comelec time" and "Comelec space," much the same considerations should be borne in mind. As earlier noted, the Comelec is commanded by statute to buy or "procure" "Comelec time" and

"Comelec space" in mass media, and it must be presumed that Comelec will carry out that statutory duty in this connection, and if it does fail to do so, once again, the candidate or candidates who feel aggrieved have judicial remedies at their disposal.

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 exercises 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 rights 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.

Petition denied for lack of merit.

ARTICLE IX - CONSTITUTIONAL COMMISSIONS C. COMMISSION ON ELECTIONS

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC.. VS. COMELEC

(G.R. NO. 132922.APRIL 21, 1998) MENDOZA, J.:

FACTS:

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP) is an organization of lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc., operates radio and television broadcasting stations throughout the Philippines under a franchise granted by Congress. The Supreme Court explained that TELEBAP has no legal standing to file the case. A citizen will be allowed to raise a constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. Members of petitioner have not shown that they have suffered harm as a result of the operation of §92 of B.P. Blg. 881. The High Court, however, recognized the legal standing of Petitioner GMA to bring the constitutional challenge. GMA claims that it suffered losses running to several million pesos in providing COMELEC Time in connection with the 1992 presidential election and the 1995 senatorial election and that it stands to suffer even more should it be required to do so. Petitioner’s allegation that it will suffer losses again because it is required to provide free air time is sufficient to give it standing to question the validity of §92 of BP 881 (Omnibus Election Code).

As pointed out in Osmeña v. COMELEC, §11(b) of R.A. No.

6646 and §90 and §92 of B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the opportunity of candidates in an election in regard to the use of mass media for political campaigns. These statutory provisions state in relevant parts:

B.P. Blg. 881, (Omnibus Election Code)

SEC. 90. Comelec space. - The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as

“Comelec Space” wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated. (Sec. 45, 1978 EC).

SEC. 92. Comelec time. - The Commission shall procure radio and television time to be known as “Comelec Time” which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations.

For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Sec. 46, 1978 EC)

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Thus, the law prohibits mass media from selling or donating print space and air time to the candidates and requires the COMELEC instead to procure print space and air time for allocation to the candidates.

It will be noted that while §90 of B.P. Blg. 881 requires the COMELEC to procure print space which, as we have held, should be paid for, §92 states that air time shall be procured by the COMELEC free of charge.

Petitioners contend that §92 of BP Blg. 881 violates the due process clause and the eminent domain provision of the Constitution by taking air time from radio and television broadcasting stations without payment of just compensation. Petitioners claim that the primary source of revenue of the radio and television stations is the sale of air time to advertisers and that to require these stations to provide free air time is to authorize a taking which is not “a de minimis temporary limitation or restraint upon the use of private property.” According to petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursdays from 7:00 to 8:00 p.m. (prime time) and, further, it stands to lose in the 1998 Elections, P58,980,850.00 in view of COMELEC’s requirement that radio and television stations provide at least 30 minutes of prime time daily for the COMELEC Time.

ISSUE: Whether or not Section 92 of the Omnibus Election Code is valid.

HELD:

Yes, Section 92 of BP 881 is valid.

All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast than there are frequencies to assign. A franchise is thus a privilege subject, among other things, to amendment by Congress in accordance with the constitutional provision that “any such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when the common good so requires.” Indeed, provisions for COMELEC Time have been made by amendment of the franchises of radio and television broadcast stations and, until the present case was brought, such provisions had not been thought of as taking property without just compensation. Art. XII, §11 of the Constitution authorizes the amendment of franchises for “the common good.”

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service. Thus, in De Villata v. Stanley, a regulation requiring interisland vessels licensed to engage in the interisland trade to carry mail and, for this purpose, to give advance notice to postal authorities of date and hour of sailings of vessels

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service. Thus, in De Villata v. Stanley, a regulation requiring interisland vessels licensed to engage in the interisland trade to carry mail and, for this purpose, to give advance notice to postal authorities of date and hour of sailings of vessels