(Un)fair election act

Precision and clarity are two essential characteristics that any lawyer’s writings must possess. The same principle holds true for the laws that are crafted by our lawmakers. My students in Constitutional law know the reason why. A vague, imprecise law is Constitutionally offensive as it violates both substantive and procedural due process. It violates procedural due process because it does not provide fair notice to the public as to what the prohibited act is. It also violates substantive due process because it lends itself to an arbitrary application. Otherwise stated, it clothes our law enforcers with the unbridled discretion to implement the law in the way they see fit.

The lack of precision and clarity are my main beef with section 6 of the Fair Election Act as implemented by Comelec Resolution No. 8758 regarding the ban on alleged celebrity and media endorsers of political candidates. The contested provision reads: “Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period.”

There is no issue with respect to the first part of the provision — that of a mass media personality who needs to resign or take a leave of absence if he or she is a candidate. Given the legitimate need to level the playing field among candidates during elections, that purpose is conceded as fair and proper. The problem pertains to the mass media personality who is a campaign volunteer, employee or talent who is forced to resign or go on leave. There are several potential violations that can be raised.

First, there is the issue regarding an unlawful deprivation of property without due process of law. Appearing on television and the movies or commenting on radio is gainful employment (emphasis on gainful). Writing for a broad sheet is employment as well although the gain is more psychic rather than financial. Regardless, it is recognized that one’s employment, profession or trade is a property right, the wrongful interference of which is an actionable wrong. The test for a valid exercise of police power is well known to law students: first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In other words, there is a need for a lawful subject (or object) and lawful means. In this instance, is the requirement to resign or go on leave reasonable? Is it not unduly oppressive to our mass media personalities?

Then there is the issue of an abridgment of the freedom of speech, of expression or of the press (with all three converging in this particular instance). Political speech is at the high end of the spectrum insofar as protected expression is concerned. And any prior restraint of such bears a heavy presumption of unconstitutionality.

We should also remember that mass media personalities are citizens and voters as well who enjoy political rights. Insofar as commentators and broadcasters are concerned, what comes to mind is the case of Sanidad v. Comelec where the latter came out with a resolution prohibiting columnists from writing for or against the creation of the Cordillera Administrative Region a month before the plebiscite. In that case, the Supreme Court castigated the Comelec saying that instead of regulating political commentaries, it should encourage the same as these help stimulate a critical discussion of the issues which, in turn, leads to a better informed voter.

The third issue deals with a potential violation of the equal protection clause. The equal protection of the laws not only mandates that those who are similarly situated are treated in a similar manner, it also provides that those who are dissimilarly situated should be treated differently. In this instance, the law similarly treats mass media personalities who are openly campaigning and endorsing a candidate as a matter of conviction as opposed to those who are paid to provide entertainment in a political sortie. The blanket prohibition is too broad as it fails to discriminate between a potential violation of a human right and that of a property right. Similarly, the law does not distinguish between personalities who have a current television or radio program and those who have not. The former seems to be the target of discrimination.

The Comelec seems to equate endorsing with campaigning. One can easily see the fallacy of the comparison. It is like equating like with love. However, I do concede that in the same way that like can ripen into love, full time campaigning can begin with an initial endorsement. That is the proper time when the Comelec should step in.

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This week’s four centavos go to the ASEAN Law Association’s Philippine National Committee led by its chairman, Chief Justice Reynato Puno and president, ACCRA Law’s Avelino Cruz, for hosting the governing council meeting in Manila this week. This year marks the 30th anniversary of ALA. In attendance are the Chief Justices of Thailand and Brunei as well as several justices and legal luminaries from our southeast Asian neighbors. In this day and age of globalization, it is important that the smaller countries band together to be able to meaningfully compete in the international arena. In its own way, ALA tries to accomplish this objective by providing a venue where lawyers from the region are able to discuss common legal policy issues as well as share best practices that can assist each other in achieving the universal objective of an effective and efficient administration of justice.

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“Sometimes a winner is just a dreamer

That never gave up.”   — Anonymous

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