EN BANC

G.R. No. 208062, April 07, 2015

SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

LEONEN, J.:

This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation to Rule 65, of the 1997 Rules of Civil
Procedure praying that respondent Commission on Elections' Resolution No. 96742 dated April 23, 2013 be nullified
and set aside and that the Commission on Elections be permanently enjoined from enforcing the same Resolution, as
well as prosecuting Social Weather Stations, Inc. and Pulse Asia, Inc. for violating it or otherwise compelling compliance
with it.3

Commission on Elections' (COMELEC) Resolution No. 9674 directed Social Weather Stations, Inc. (SWS) and Pulse Asia,
Inc. (Pulse Asia), as well as "other survey firms of similar circumstance"4 to submit to COMELEC the names of all
commissioners and payors of all surveys published from February 12, 2013 to April 23, 2013, including those of their
"subscribers."5

SWS and Pulse Asia are social research and public polling firms. Among their activities is the conduct of pre-election
surveys.6

As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS conducted a pre-election survey on
voters' preferences for senatorial candidates. Thereafter, it published its findings.7 The following question was asked
in the survey:

Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto bilang mga SENADOR ng
PILIPINAS? Narito ang listahan ng mga kandidato. Paki-shade o itiman po ang naaangkop na oval katabi ng pangalan
hg mga taong pinakamalamang ninyong iboboto. Maaari po kayong pumili ng hanggang labindalawang (12) kandidato.

(LIST OF CANDIDATES OMITTED)

If the elections were held today, whom would you most probably vote for as SENATORS of the PHILIPPINES? Here is a
list of candidates. Please shade the oval beside the name of the persons you would most likely vote for. You may
choose up to twelve (12) candidates.

(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)

On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-General of the United Nationalist Alliance
(UNA), wrote Atty. Esmeralda Ladra, Director of COMELEC's Law Department.9 In his letter,10 Tiangco asked COMELEC
to "compel [SWS] to either comply with the directive in the Fair Election Act and COMELEC Resolution No. 9[6]1[5]
and give the names or identities of the subscribers who paid for the [pre-election survey conducted from February 15
to February 17, 2013], or be liable for the violation thereof, an act constitutive of an election offense."11

Tiangco recounted that on February 28, 2013, he wrote to SWS requesting, among others, that he "be furnished the
identity of persons who paid for the [pre-election survey conducted from February 15 to February 17, 2013] as well as
those who subscribed to it."12 Sometime in March 2013, SWS supposedly replied to Tiangco, "furnishing [him] with
some particulars about the survey but [without] disclosing] the identity of the persons who commissioned or
subscribed to the survey."13

Acting on Tiangco's letter and on the COMELEC Law Department's recommendation, the COMELEC En Bane issued the
Order14 dated April 10, 2013 setting the matter for hearing on April 16, 2013. The same Order directed SWS to submit
its Comment within three (3) days of receipt.15 On April 12, 2013, Pulse Asia received a letter from COMELEC
"requesting its representative to attend the COMELEC hearing on 16 April 2013."16
SWS and Pulse Asia recounted that during the hearing, COMELEC Chairman Sixto S. Brillantes, Jr. (COMELEC Chairman
Brillantes) stated that the proceeding was merely a clarificatory hearing and not a formal hearing or an investigation.17

On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The entire dispositive portion of this Resolution
reads:

WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby RESOLVES, to DIRECT the SWS, Pulse
Asia and other survey firms of similar circumstance to submit within three (3) days from receipt of this Resolution the
names of all commissioners and payors of surveys published from February 12, 2013 to the date of the promulgation
of this Resolution for copying and verification by the Commission. The submission shall include the names of all
"subscribers" of those published surveys. Such information/data shall be for the exclusive and confidential use of the
Commission;

RESOLVED FURTHER, that all surveys published subsequent to the promulgation of this Resolution must be
accompanied by all the information required in Republic Act no. 9006, including the names of commissioners, payors
and subscribers.

This resolution shall take effect immediately after publication.

A violation of these rules shall constitu[t]e an election offense as provided in Republic Act no. 9006, or the Fair Election
Act.18 (Emphasis in the original)

As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)19 of the 1987 Constitution and Sections 5.1
to 5.320 of Republic Act No. 9006, otherwise known as the Fair Election Act, as implemented by COMELEC Resolution
No. 9615.21

SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674 and as of their filing before this court
of the present Petition, they had not been furnished copies of Resolution No. 9674.22 (They emphasized that while a
certified true copy of this Resolution was attached to their Petition, this was a copy which they themselves secured
"for the purpose of complying.with the requirement that Rule 65 petitions must be accompanied by a certified true
copy of the assailed order or resolution[.]"23)

In the letter24 dated April 30, 2013, SWS and Pulse Asia informed COMELEC Chairman Brillantes that they had not
received a copy of Resolution No. 9674. They also articulated their view that Resolution No. 9674 was tainted with
irregularities, having been issued ultra vires (i.e., in excess of what the Fair Election Act allows) and in violation of the
non-impairment of contracts clause of the Constitution. They also expressed their intention to bring the matter before
this court on account of these supposed irregularities. Thus, they requested that COMELEC defer or hold in abeyance
Resolution No. 9674's enforcement.25

On May 8, 2013, the COMELEC Law Department issued a Notice26 to SWS (and also to Pulse Asia) directing it to furnish
COMELEC with a list of the names of all "commissioners, subscribers, and payors of surveys published from February
12, 2013 until April 23, 2013."27 SWS was warned that failure to comply with the Notice shall constitute an election
offense punishable under the Omnibus Election Code.28

On July 1, 2013, COMELEC issued a Subpoena29 notifying SWS and Pulse Asia that a Complaint "for violation of Section
264[,] par. 1 and 2 of the Omnibus Election Code30 in relation to R.A. 9006"31 was filed against them. (This was
docketed as E.O. Case No. 13-222). They were also directed to appear and to submit their counter-affidavits and other
supporting documents at the hearing set on August 6, 2013.32

SWS and Pulse Asia maintained that before receiving the Subpoena, they were never informed that a criminal case
had been filed against them. They added that they were never furnished copies of the relevant criminal Complaint.33

On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. filed the present Petition.34 They assail
Resolution No. 9674 as having been issued ultra vires. They are of the position that Resolution No. 9674, in requiring
the submission of information on subscribers, is in excess of what the Fair Election Act requires.35 Likewise, they,
assert that Resolution No. 9674 transgresses the Fair Election Act in making itself executory immediately after
publication.36 Moreover, they claim that it violates the non-impairment of contracts clause of the Constitution,37 and
was enforced in violation of their right to due process (as they were charged with its violation despite not having been
properly served with copies of the complaint filed against them).38 Petitioners pray for the issuance of a temporary
restraining order and/or writ of preliminary injunction in the interim.39

In this court's July 30, 2013 Resolution,40 COMELEC was required to file a Comment on the Petition. In the same
Resolution, this court issued a temporary restraining order "enjoining the enforcement of COMELEC Resolution No.
9674 with respect to submission of the names of regular subscribers but not to the submission of (1) the names of
specific subscribers for the limited period of February 12, 2013 to April 23, 2013 who have paid a substantial amount
of money for access to survey results and privileged survey data; and (2) the names of all commissioners and payors
of surveys published within the same period."41

On October 10, 2013, COMELEC filed its Comment.42 On February 12, 2014, petitioners filed their Joint Reply.43

In this court's February 18, 2014 Resolution,44 the present Petition was given due course, and the parties were
directed to file their memoranda. Petitioners complied on May 16, 201445 and COMELEC on June 25, 2014.46

For resolution are the following issues:

First, whether Resolution No. 9674 is invalid in that it requires the disclosure of the names of "subscribers" of election
surveys;

Second, whether the rights of petitioners to free speech will be curtailed by the requirement to submit the names of
their subscribers;

Third, whether Resolution No. 9674, insofar as it compels petitioners to submit the names of their subscribers, violates
the constitutional proscription against the impairment of contracts (Article II, Section 10);

Fourth, whether at the time petitioners were required by COMELEC to reveal the names of the subscribers to their
election surveys, Resolution No. 9674 was already in force and effect; and

Lastly, whether COMELEC deprived petitioners of due process of law when it:

a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint for an election offense; and

b) refused to specify the election offense under which they were being prosecuted.

We sustain the validity of Resolution No. 9674. The names of those who commission or pay for election surveys,
including subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair Election Act. This
requirement is a valid regulation in the exercise of police power and effects the constitutional policy of "guarantee[ing]
equal access to opportunities for public service[.]"47 Section 5.2(a)'s requirement of disclosing subscribers neither
curtails petitioners' free speech rights nor violates the constitutional proscription against the impairment of contracts.

However, it is evident that Resolution No. 9674 was promulgated in violation of the period set by the Fair Election Act.
Petitioners were also not served a copy of Resolution No. 9674 with which they were asked to comply. They were
neither shown nor served copies of the criminal Complaint subject of E.O. Case No. 13-222. Petitioners' right to due
process was, thus, violated.

Petitioners assail Resolution No. 9674's requirement of submission of names of subscribers, including those who did
not commission or pay for a specific survey or cause its publication, for being ultra vires. They maintain that the Fair
Election Act "as it was written by Congress covers only those who commission or pay for a particular election survey,
and requires disclosure of their names only when that particular survey is published."48 From this, they add that
COMELEC exceeded its authority — "creating] an election offense where there was none before"49 — in considering
as an election offense any violation of Resolution No. 9674.

COMELEC, for its part, insists on the "wide latitude of discretion"50 granted to it in the performance of its
constitutional duty to "[e]nforce and administer all laws and regulations relative to the conduct of an election[.]"51 It
adds that "as the specialized constitutional body charged with the enforcement and administration of election
laws,"52 its contemporaneous construction of Section 5.2(a) of the Fair Election Act is "entitled to great weight and
respect."53 Citing the supposed legislative intent of Section 5.2 as "broaden[ing] the subject of disclosure,"54
COMELEC claims that Section 5.2(a) "draws no distinction between the direct payors and the indirect payors of the
survey."55 It adds that requiring the disclosure of survey subscribers addresses the requirement of reporting election
expenditures by candidates and political parties, thereby helping COMELEC check compliance with this requirement.56

Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with its text but also with the purpose for
which it, along with the Fair Election Act, was adopted, sustains COMELEC's position.

Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or ensuring] equal opportunity for public
service"57 and to this end, stipulates mechanisms for the "supervision] or regulation of] the enjoyment or utilization
of all franchises or permits for the operation of media of communication or information[.]"58 Hence, its short title:
Fair Election Act.

Situated within the constitutional order, the Fair Election Act provides means to realize the policy articulated in Article
II, Section 26 of the 1987 Constitution to "guarantee equal access to opportunities for public service[.]" Article II,
Section 26 models an understanding of Philippine political and electoral reality. It is not merely hortatory or a
statement of value. Among others, it sums up an aversion to the perpetuation of political power through electoral
contests skewed in favor of those with resources to dominate the deliberative space in any media.

Apart from making real Article II, Section 26's constitutional policy, the Fair Election Act represents the legislature's
compliance with the requirement of Article XIII, Section 1: "Congress . . . give[s] highest priority to the enactment of
measures that. . . reduce . . . political inequalities ... by equitably diffusing wealth and political power for the common
good."59

Moreover, the constitutional desire to "guarantee equal access to opportunities for public service"60 is the same
intent that animates the Constitution's investiture in COMELEC of the power to "supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its
subsidiary."61

Specific provisions in the Fair Election Act regulate the means through which candidates for elective public office, as
well as political parties and groups participating in the party-list system, are able to make themselves known to voters,
the same means through which they earn votes.

Section 3 permits the use of lawful election propaganda.62 Section 4 regulates published or printed, and broadcast
election propaganda.63 Section 6 governs access to media time and space.64 Sections 7 and 8 provide for COMELEC's
competencies (i.e., affirmative action, and the so-called "COMELEC Space" and "COMELEC Time") that enable it to
equalize candidates' exposure to voters.65 Section 9 regulates venues for the posting of campaign materials.66 Section
10 provides for parties' and candidates' right to reply.67 Section 11 requires media outlets to make available the use
of their facilities for election propaganda at discounted rates.68

The Fair Election Act also governs published surveys during elections.

Section 5.1 defines election surveys-as "the measurement of opinions and perceptions of the voters as regards a
candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including
voters' preference for candidates or publicly discussed issues during the campaign period[.]" Sections 5.2 and 5.3
provide regulations that facilitate transparency with respect to ' election surveys. Section 5.469 is no longer in effect,
having been declared unconstitutional in this court's May 5, 2001 Decision in Social Weather Stations and Kamahalan
Publishing Corp. v. COMELEC.70 Section 5.571 pertains to exit polls.

Section 5.2 enumerates the information that a person publishing an election survey must publish along with the survey
itself:
5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a
survey must likewise publish the following information:chanroblesvirtuallawlibrary
The name of the person, candidate, party or. organization who commissioned or paid for the survey;
The name of the person, polling firm or survey organization who conducted the survey;
The period during which the survey was conducted, the methodology used, including the number of individual
respondents and the areas from which they were selected, and the specific questions asked;
The margin of error of the survey;
For each question for which the margin of error is greater than that reported under paragraph (d), the margin of error
for that question; and
A mailing address and telephone number, indicating it as an address or telephone number at which the sponsor can
be contacted to obtain a written report regarding the survey in accordance with Subsection 5.3. (Emphasis supplied)

Section 5.3 facilitates the inspection, copying, and verification not only of an election survey but also of the raw data
used as bases for its conclusions:

5.3 The survey together with raw data gathered to support its conclusions shall be available for inspection, copying
and verification by the COMELEC or by a registered political party or a bona fide candidate, or by any COMELEC-
accredited citizen's arm. A reasonable fee sufficient to cover the costs of inspection, copying and verification may be
charged.

As with all the other provisions of the Fair Election Act, Section 5 is a means to guarantee equal access to the
deliberative forums essential to win an elective public office. Any reading of Section 5 and of its individual components,
such as Section 5.2(a), cannot be divorced from this purpose.

The inclusion of election surveys in the list of items regulated by the Fair Election Act is a recognition that election
surveys are not a mere descriptive aggregation of data. Publishing surveys are a means to shape the preference of
voters, inform the strategy of campaign machineries, and ultimately, affect the outcome of elections. Election surveys
have a similar nature as election propaganda. They are expensive, normally paid for by those interested in the outcome
of elections, and have tremendous consequences on election results.

II

Views vary on the precise extent to which surveys or "polls" shape voter preferences, if at all.

Election surveys have been critiqued for amplifying the notion of an election as a "horse race"72 and for reducing
elections to the lowest common denominator of percentage points or a candidate's erstwhile share in the vote market
rather than focusing on issues, principles, programs, and platforms.

Several possible, albeit conflicting, effects of surveys on voter behavior have been postulated:

First, there is the bandwagon effect where "electors rally to support the candidate leading in the polls."73 This
"assumes that knowledge of a popular 'tide' will likely change voting intentions in [favor] of the frontrunner, that many
electors feel more comfortable supporting a popular choice or that people accept the perceived collective wisdom of
others as being enough reason for supporting a candidate."74

Second, there is the underdog effect where "electors rally to support the candidate trailing in the polls."75 This shift
can be motivated by sympathy for the perceived underdog.76

Third, there is the motivating effect where "individuals who had not intended to vote are persuaded to do so,"77
having been alerted to the fact of an election's imminence.78

Fourth, there is also the demotivating effect where "voters abstain from voting out of certainty that their candidate
or party will win[.]"79

Fifth, there are reports of a behavior known as strategic voting where "voting is influenced by the chances of
winning[.]"80
Lastly, there is also the theory of a free-will effect where "voters cast their ballots to prove the polls wrong[.]"81

Election surveys published during election periods create the "politics of expectations."82 Voters act in accordance
with what is perceived to be an existing or emerging state of affairs with respect to how candidates are faring.

Of the six (6) effects, the bandwagon effect has a particular resonance and has been of concern. Surveys, or opinion
polls, "by directly influencing individual-level support . . . , can be self-fulfilling prophecies and produce opinion
cascades."83 "[A] poll's prediction may come to pass not only because it measures public opinion but also because it
may influence public opinion."84

The bandwagon effect is of particular concern because of the observed human tendency to conform. Three (3)
mechanisms through which survey results may induce conformity have been posited:

(1) normative social influence, or people's desire to adopt the majority position in order to feel liked and accepted or
believe they are on the winning team;

(2) informational social influence, or people learning from the 'wisdom of crowds' via social proof because they 'believe
that others' interpretation of an ambiguous situation is more accurate . . . and will help [them] choose an appropriate
course of action'; and

(3) people resolving cognitive dissonance by switching to the side they infer is going to win based on the
poll.85cralawlawlibrary

Likewise, it has been argued that the bandwagon effect is but the obverse of the so-called false-consensus effect or
false-consensus bias:

The bandwagon effect, a form of conformity, is the mirror image of the false consensus effect, where people
misperceive that their own behaviors and attitudes are more popular than they actually are. In the political domain,
one mechanism underlying the false consensus effect is wishful thinking - people gaining utility from thinking their
candidate is ahead or their opinions are popular.86

The bandwagon effect induced by election surveys assumes even greater significance in considering the health of a
democracy.

Integral to our appreciation of democracy is the recognition that democracy is fundamentally deliberative. It is rooted
in the exchange and dialogue of ideas. Accordingly, free expression, not least of all from the minority and from those
who do not conform, i.e., those who dissent and criticize, is indispensable:

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue
is a critical, and indeed defining, feature of a good polity." This theory may be considered broad, but it definitely
"includes [a] collective decision making with the participation of all who will be affected by the decision." It anchors
on the principle that the cornerstone of every democracy is that sovereignty resides in the people. To ensure order in
running the state's affairs, sovereign powers were delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the theory on deliberative democracy may evolve to the
right of the people to make government accountable. Necessarily, this includes the right of the people to criticize acts
made pursuant to governmental functions.

Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should thus be
protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed remedies."

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a
full discussion of public affairs." This court has, thus, adopted the principle that "debate on public issues should be
uninhibited, robust, and wide open . . . [including even] unpleasantly sharp attacks on government and public
officials."87cralawlawlibrary

However, "conformity pressures can suppress minority opinion."88 The bandwagon effect conjures images of an
impregnable majority, thereby tending to push farther toward the peripheries those who are already marginalized.
Worse, the bandwagon effect foments the illusion of a homogenous monolith denying the very existence of those in
the minority. This undermines the "normative conceptions of democracy"89 substituting the democratic dialogue with
acquiescence to perceived or projected orthodoxy.

Surveys, far from being a passive "snapshot of many viewpoints held by a segment of the population at a given time,"90
can warp existing public opinion and can mould public opinion. They are constitutive. Published election surveys offer
valuable insight into public opinion not just because they represent it but more so because they also tend to make it.

Appreciating this tendency to both entrench and marginalize is of acute relevance in the context of Philippine political
reality. This is the same reality that our policymakers, primarily the framers of the Constitution, have seen fit to
address.

III

The constitutional dictum to "guarantee equal access to opportunities for public service"91 and (even more specifically
and explicitly) to "prohibit political dynasties"92 does not exist in a vacuum.

Politics in the Philippines has been criticized as "a lucrative means of self-aggrandizement."93 Ours is an exclusive
system that perpetuates power and provides sanctuary to those who have already secured their place. Traditional
Filipino politics connotes elite families that, with the state, are "engaged in a reciprocal relationship that constantly
defines and redefines both."94 As recounted by Alfred McCoy, this reciprocal relationship, typified by rent-seeking
(i.e., "taking advantage of their access to state privileges to expand proprietary wealth"95), is a vicious cycle
propagated for as long as the Philippines has been a republic: "The emergence of the Republic as a weak postcolonial
state augmented the power of rent-seeking political families — a development that further weakened the state's own
resources."96

The Philippines, as it emerged in the wake of Ferdinand Marcos' presidency and the adoption of the 1987 Constitution,
saw the "celebritification"97 of political office. On the legislature and studying emerging contrasts in the composition
of its two chambers — the Senate and the House of Representatives — it has been noted:

The old political families, however are not as strong in the Senate as they are in the House. This could be read, if not
as a total repudiation by voters of family power, then at least as an attempt by them to tap other sources of national
leadership. Celebrities and military and police officers have emerged as alternatives to traditional politicians. It could
be that these new men and women have captured the popular imagination or that they are more in tune with the
public pulse. But their emergence could very well be seen as an indication of the paucity of choices: Political parties,
for one, have not succeeded in proffering a wider range of options to an electorate weary of trapos.98

This celebritification nurtures misleading notions of an enhanced or healthier democracy, one that opens avenues to
a crop of political leaders not belonging to oligarchic families. Viewed critically however, this is nothing more than a
pipe dream. New elites now share the political stage with the old. The tension between two contrary tendencies
actually serves to preserve the status quo of elitism — an expanded elitism perhaps, but elitism no less. To evoke a
truism, "the more things change, the more they stay the same":

But the "celebritification" of the Senate can also be interpreted as the democratization of an exclusive body once
reserved only for the very rich, the politically experienced, and the intellectually brilliant. In a sense, the bar of entry
has been lowered, and anyone with national renown can contest a seat in a chamber once famous for sharp debates
and polysyllabic peroration.

The main criterion for a Senate seat is now name recall. This is where celebrities have the edge even over older political
families with bankable names. . . .

....
The diminishing clout of old families in the Senate—and their continued dominance in the House—shows the push
and pull of two contrary tendencies. The first tendency is toward the new: The importance of name recall in national
elections taking place in a media-inundated environment makes it easier for movie and media personalities, and
harder for old-style politicians, to be elected. The second tendency is veering toward the old: At the district level,
trapo-style patronage and machine politics remain deeply entrenched, giving political families the edge in
elections."99

Thus, where once there was elitism solely along lines of kinship — Alfred McCoy's so-called "anarchy of families" —
now there is also elitism demarcated by name recall, populist projection, and media exposure, arguably, an "anarchy
of celebrities."

Certainly, it is not the business of this court to engage in its own determination of the wisdom of policy. Nevertheless,
having to grapple with the tasks of adjudication and interpretation, it has become necessary to bring to light the intent
that underlies the disputed statutory provision, as well as the constitutional regime and social context, in which this
provision is situated.

To reiterate, the inclusion of published election surveys in a statute that regulates election propaganda and other
means through which candidates may shape voter preferences is itself telling of the recognition that published election
surveys, too, may influence voter preferences. This inclusion is similarly telling of a recognition that, left unregulated,
election surveys can undermine the purposes of ensuring "fair" elections. These recognitions are embedded in the Fair
Election Act; they are not judicial constructs. In adjudicating with these' as bases, this court is merely adhering to the
legislative imperative.

IV

It is necessary that the Fair Election Act be appreciated for what it is: a mechanism for ensuring equality. The Fair
Election Act is a means to effect the "necessary condition" to a genuine democratic dialogue, to realizing a deliberative
democracy. The concept of this "necessary condition" was previously considered by this court in Diocese of Bacolod
v. COMELEC:100

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background limitation, rendering freedoms exercised within such limitation as
merely "protecting] the already established machinery of discrimination." In his view, any improvement "in the normal
course of events" within an unequal society, without subversion, only strengthens existing interests of those in power
and control.

In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if not
taken in a real context. This tendency to tackle rights in the abstract compromises liberties. In his words:

Liberty is selfi-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series
of synthetic judgments. It stipulates the ability to determine one's own life: to be able to determine what to do and
what not to do, what to suffer and what not. But the subject of this autonomy is never the contingent, private
individual as that which he actually is or happens to be; it is rather the individual as a human being who is capable of
being free with the others. And the problem of making possible such a harmony between every individual liberty and
the other is not that of finding a compromise between competitors, or between freedom and law, between general
and individual interest, common and private welfare in an established society, but of creating the society in which man
is no longer enslaved by institutions which vitiate self-determination from the beginning. In other words, freedom is
still to be created even for the freest of the existing societies.

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people —
"implies a necessary condition, namely, that the people must be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic information, and that, on this basis, their evaluation must be the
result of autonomous thought'." He submits that "[different opinions and 'philosophies' can no longer compete
peacefully for adherence and persuasion on rational grounds: the 'marketplace of ideas' is organized and delimited by
those who determine the national and the individual interest."
A slant toward left manifests from his belief that "there is a 'natural right' of resistance for oppressed and overpowered
minorities to use extralegal means if the legal ones have proved to be inadequate." Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and indoctrinations. The
tolerance of libertarian society he refers to as "repressive tolerance."101

What is involved here is petitioners' freedom of speech and of expression, that is, to publish their findings. More
specifically, what is involved here is their right to political speech, that which "refers to speech 'both intended and
received as a contribution to public deliberation about some issue,' 'foster[ing] informed and civic-minded
deliberation."102

The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring political equality, calls into
operation the equality-based approach to weighing liberty to express vis-a-vis equality of opportunities. As explained
in Diocese of Bacolod:103

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting
political equality prevails over speech." This view allows the government leeway to redistribute or equalize 'speaking
power,' such as protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically subdued
within society's ideological ladder. This view acknowledges that there are dominant political actors who, through
authority, power, resources, identity, or status, have capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is part of the majoritarian world like ours.

...

The scope of the guarantee of free expression takes into consideration the constitutional respect for human
potentiality and the effect of speech. It valorizes the ability of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take into consideration the effects it will have in a deliberative
democracy. Skewed distribution of resources as well as the cultural hegemony of the majority may have the effect of
drowning out the speech and the messages of those in the minority. In a sense, social inequality does have its effect
on the exercise and effect of the guarantee of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the more popular ideas will have better
reception than the subversive and the dissenters of society. To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This
view, thus, restricts laws or regulation that allows public officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to some
expression during electoral campaigns.104

The required judicial temperament in appraising speech in the context of electoral campaigns which is principally
designed to endorse a candidate, both by candidates and / or political parties, on the one hand, and private citizens,
on the other, has thus been articulated:

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their
political parties or their political parties may be regulated as to time, place, and manner. This is the effect of our rulings
in Osmeña v. COMELEC and National Press Club v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not
speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount to an election
paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not
candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is
declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The
regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the
basis of its content. For this purpose, it will not matter whether the speech is made with or on private property.105
[Emphasis in the original]

Concededly, what is involved here is not election propaganda per se. Election surveys, on their face, do not state or
allude to preferred candidates. As a means, election surveys are ambivalent. To an academician, they are an
aggrupation of data. To a journalist, they are matters for reportage. To a historian, they form part of a chronicle.
Election surveys thus become unambiguous only when viewed in relation to the end for which they are employed. To
those whose end is to get a candidate elected, election surveys, when limited to their own private consumption, are a
means to formulate strategy. When published, however, the tendency to shape voter preferences comes into play. In
this respect, published election surveys partake of the nature of election propaganda. It is then declarative speech in
the context of an electoral campaign properly subject to regulation. Hence, Section 5.2 of the Fair Election Act's
regulation of published surveys.

We thus proceed to evaluate Resolution No. 9674's requirement of disclosing the names of subscribers to election
surveys in light of the requisites for valid regulation of declarative speech by private entities in the context of an
election campaign:

First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of subscribers among those persons who
"paid for the survey[.]"106 Thus, Resolution No. 9674 is a regulation finding basis in statute.

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who "commissioned" and those who
"paid for" the published survey are separated by the disjunctive term "or."107 This disassociates those who
"commissioned" from those who "paid for" and identifies them as alternatives to each other.108 Section 5.2(a) thus
requires the disclosure of two (2) classes of persons: "[first,] those who commissioned or sponsored the survey; and
[second,] those who paid for the survey."109

The second class makes no distinction between those who pay for a specific survey and those who pay for election
surveys in general. Indeed, subscribers do not escape the burden of paying for the component articles comprising a
subscription. They may pay for them in aggregate, but they pay for them just the same. From the text of Section 5.2(a),
the legislative intent or regulatory concern is clear: "those who have financed, one way or another, the [published]
survey"110 must be disclosed.

Second, not only an important or substantial state interest but even a compelling one reasonably grounds Resolution
No. 9674's inclusion of subscribers to election surveys. Thus, regardless of whether an intermediate or a strict standard
is used, Resolution No. 9674 passes scrutiny.

It is settled that constitutionally declared principles are a compelling state interest:

Compelling governmental interest would include constitutionally declared principles. We have held, for example, that
"the welfare of children and the State's mandate to protect and care for them, as parens patriae, constitute a
substantial and compelling government interest in regulating . . . utterances in TV broadcast."111

Here, we have established that the regulation of election surveys effects the constitutional policy, articulated in Article
II, Section 26, and reiterated and affirmed in Article IX-C, Section 4 and Article XIII, Section 26 of the 1987 Constitution,
of "guarantee[ing] equal access to opportunities for public service[.]"112

Resolution No. 9674 addresses the reality that an election survey is formative as it is descriptive. It can be a means to
shape the preference of voters and, thus, the outcome of elections. In the hands of those whose end is to get a
candidate elected, it is a means for such end and partakes of the nature of election propaganda. Accordingly, the
imperative of "fair" elections impels their regulation.

Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression"113 and is "demonstrably the least
restrictive means to achieve that object."114

While it does regulate expression (i.e., petitioners' publication of election surveys), it does not go so far as to suppress
desired expression. There is neither prohibition nor censorship specifically aimed at election surveys. The freedom to
publish election surveys remains. All Resolution No. 9674 does is articulate a regulation as regards the manner of
publication, that is, that the disclosure of those who commissioned and/or paid for, including those subscribed to,
published election surveys must be made.cralawlawlibrary

VI

Petitioners harp on what they claim to be Section 5.2(a)'s "plain meaning" and assert that there is no room to entertain
COMELEC's construction of Section 5.2(a).115

It has been said that "[a] cardinal rule in statutory construction is that when the law is clear and free from any doubt
or ambiguity, there is no room for construction or interpretation. There is only room for application."116

Clarifications, however, are in order.

First, verba legis or the so-called plain-meaning rule applies only when the law is completely clear, such that there is
absolutely no room for interpretation. Its application is premised on a situation where the words of the legislature are
clear that its intention, insofar as the facts of a case demand from the point of view of a contemporary interpretative
community, is neither vague nor ambiguous. This is a matter of judicial appreciation. It cannot apply merely on a
party's contention of supposed clarity and lack of room for interpretation.

This is descriptive of the situation here.

Interestingly, both COMELEC and petitioners appeal to what they (respectively) construe to be plainly evident from
Section 5.2(a)'s text: on the part of COMELEC, that the use of the words "paid for" evinces no distinction between
direct purchasers and those who purchase via subscription schemes; and, on the part of petitioners, that Section
5.2(a)'s desistance from actually using the word "subscriber" means that subscribers are beyond its contemplation.117
The variance in the parties' positions, considering that they are both banking on what they claim to be the Fair Election
Act's plain meaning, is the best evidence of an extant ambiguity.

Second, statutory construction cannot lend itself to pedantic rigor that foments absurdity. The dangers of inordinate
insistence on literal interpretation are commonsensical and need not be belabored. These dangers are by no means
endemic to legal interpretation. Even in everyday conversations, misplaced literal interpretations are fodder for
humor. A fixation on technical rules of grammar is no less innocuous. A pompously doctrinaire' approach to text can
stifle, rather than facilitate, the legislative wisdom that unbridled textualism purports to bolster.118

Third, the assumption that there is, in all cases, a universal plain language is erroneous. In reality, universality and
uniformity of meaning is a rarity. A contrary belief wrongly assumes that language is static.

The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider context and the
interplay of the historical, the contemporary, and even the envisioned. Judicial interpretation entails the convergence
of social realities and social ideals. The latter are meant to be effected by the legal apparatus, chief of which is the
bedrock of the prevailing legal order: the Constitution. Indeed, the word in the vernacular that describes the
Constitution — saligan — demonstrates this imperative of constitutional primacy.

Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we consider not an abstruse provision
but a stipulation that is part of the whole, i.e., the statute of which it is a part, that is aimed at realizing the ideal of
fair elections. We consider not a cloistered provision but a norm that should have a present authoritative effect to
achieve the ideals of those who currently read, depend on, and demand fealty from the Constitution.cralawlawlibrary
VII

We note with favor COMELEC's emphasis on the "wide latitude of discretion"119 granted to it in the performance of
its constitutional duty to "[e]nforce and administer all laws arid regulations relative to the conduct of an election[.]"120
But this is with the caution that it does not reach "grave abuse of discretion[.]121

Alliance for Nationalism and Democracy v. COMELEC122 had the following to say regarding factual findings made by
COMELEC, an independent constitutional organ:

[T]he rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is
absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force
when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC—created and
explicitly made independent by the Constitution itself—on a level higher than statutory administrative organs.123

Proceeding from this, we emphasize that this norm of deference applies not only to factual findings. This applies with
equal force to independent constitutional organs' general exercise of their functions. The constitutional placing of
independent constitutional organs on a plane higher than those of administrative agencies created only by statute is
not restricted to competence in fact-finding. It extends to all purposes for which the Constitution created them.

We reiterate, however, that our recognition of this deferential norm is made with caution. This rule of deference does
not give independent constitutional organs, like COMELEC, license to gravely abuse their discretion. With respect to
rule-making, while the wisdom of "subordinate legislation" or the rule-making power of agencies tasked with the
administration of government is acknowledged, rule-making agencies are not given unfettered power to promulgate
rules. As explained in Gerochi v. Department of Energy,124 it is imperative that subordinate legislation "be germane
to the objects and purposes of the law and that the regulation be not in contradiction to, but in conformity with, the
standards prescribed by the law."125 A regulation that purports to effect a statute but goes beyond the bounds of
that statute is ultra vires; it is in excess of the rule-making agency's competence. Thus, it is void and ineffectual.

This is not the case here. There is no grave abuse of discretion. Resolution No. 9674 serves a constitutional purpose
and works well within the bounds of the Constitution and of statute.cralawlawlibrary

VIII

Petitioners argue that Resolution No. 9674 constitutes a prior restraint in that:

Resolution No. 9674 makes it an election offense for a survey firm not to disclose the names of subscribers who have
paid substantial amounts to them, even if ihe survey portions provided to them have not been published. 1'his
requirement is unduly burdensome and onerous and constitutes a prior restraint on the right of survey firms to gather
information on public opinion and disseminate it to the citizenry.

. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate because they will not have
enough clients and will not be financially sustainable. COMELEC will finally be able to do indirectly what it could not
do directly, which is to prohibit the conduct of election surveys and the publication or dissemination of the results to
the public.126

Petitioners' assertions are erroneous.

Chavez v. Gonzales127 explained the concept of prior restraint as follows:

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of
publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to
publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to
publish; and even injunctions against publication. Even the closure of the business and printing offices of certain
newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or
censorship. Any law or official that requires some form of permission to be had before publication can be made,
commits an infringement of the constitutional right, and remedy can be had at the courts.128 (Emphasis supplied,
citations omitted)

The very definition of "prior restraint" negates petitioner's assertions. Resolution No. 9674 poses no prohibition or
censorship specifically aimed at election surveys. Apart from regulating the manner of publication, petitioners remain
free to publish election surveys. COMELEC correctly points out that "[t]he disclosure requirement kicks in only upon,
not prior to, publication."129

In any case, the requirement of disclosing subscribers is neither unduly burdensome nor onerous. Prior to the
promulgation of Resolution No. 9674, survey firms were already understood to be bound by the requirement to
disclose those who commissioned or paid for published election surveys. Petitioners have been complying with this
without incident since the Fair Election Act was enacted in 2001. After more than a decade of compliance, it is odd for
petitioners to suddenly assail the disclosure requirement as unduly burdensome or onerous.

Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate
because they will not have enough clients and will not be financially sustainable"130 is too speculative and conjectural
to warrant our consideration. The assumption is that persons who want to avail of election survey results will
automatically be dissuaded from doing so when there is a requirement of submission of their names during the
campaign period. This is neither self-evident, nor a presumption that is susceptible to judicial notice. There is no
evidence to establish a causal connection.

Petitioners' free speech rights must be weighed in relation to the Fair Election Act's purpose of ensuring political
equality and, therefore, the speech of others who want to participate unencumbered in our political spaces. On one
hand, there are petitioners' right to publish and publications which are attended by the interests of those who can
employ published data to their partisan ends. On the other, there is regulation that may effect equality and, thus,
strengthen the capacity of those on society's margins or those who grope for resources to engage in the democratic
dialogue. The latter fosters the ideals of deliberative democracy. It does not trump the former; rather, it provides the
environment where the survey group's free speech rights should reside.cralawlawlibrary

IX

Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987 Constitution.131 They claim that
it "unduly interferes with [their] existing contracts . . . by forcing [them] to disclose information that, under the
contracts, is confidential or privileged."132

For its part, COMELEC argues that "[t]he non-impairment clause of the Constitution must yield to the loftier purposes
sought to be achieved by the government."133 It adds that "[petitioners' existing contracts with third parties must be
understood to have been made in reference to the possible exercise of the COMELEC's regulatory powers."134

It is settled that "the constitutional guaranty of non-impairment... is limited by the exercise of the police power of the
State, in the interest of public health, safety, morals and general welfare."135 "It is a basic rule in contracts that the
law is deemed written into the contract between the parties."136 The incorporation of regulations into contracts is "a
postulate of the police power of the State."137

The relation of the state's police power to the principle of non-impairment of contracts was thoroughly explained in
Ortigas and Co. V. Feati Bank:138

[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be
reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations to promote the health,
morals, peace, education, good order or safety and general welfare of the people." Invariably described as "the most
essential, insistent, and illimitable of powers" and "in a sense, the greatest and most powerful attribute of
government," the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical,
unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional
guarantee. As this Court held through Justice Jose P. Bengzon in Philippine Long Distance Company vs. City of Davao,
et al. police power "is elastic and must be responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of
life." We were even more emphatic in Vda. de Genuino vs. The Court of Agrarian Relations, et al, when We declared:
"We do not see why public welfare when clashing with the individual right to property should not be made to prevail
through the state's exercise of its police power."139 (Citations omitted)

This case does not involve a "capricious, whimsical, unjust or unreasonable"140 regulation. We have demonstrated
that not only an important or substantial state interest, but even a compelling one anchors Resolution No. 9674's
requirement of disclosing subscribers to election surveys. It effects the constitutional policy of "guarantee[ing] equal
access to opportunities for public service"141 and is impelled by the imperative of "fair" elections.

As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is correctly deemed written into petitioners'
existing contracts.

Parenthetically, the obligations of agreements manifested in the concept of contracts are creations of law. This right
to demand performance not only involves its requisites, privileges, and regulation in the Civil Code or special laws, but
is also subject to the Constitution. The expectations inherent in a contract may be compelling, but so are the normative
frameworks demanded by law and the provisions of the Constitution.cralawlawlibrary

Petitioners point out that Section 13 of the Fair Election Act provides that "[r]ules and regulations promulgated by the
COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in at least
two (2) daily newspapers of general circulation." In contrast, Resolution No. 9674 provides that it "shall take effect
immediately after publication."142 Thus, they assert that Resolution No. 9674's effectivity clause is invalid. From this,
they argue that Resolution No. 9674 has not taken effect and cannot be enforced against them or against other
persons.143

COMELEC counters that Section 13 of the Fair Election Act's provision that rules shall take effect "on the seventh day
after their publication" applies only to Resolution No. 9615, the Implementing Rules and Regulations (IRR) of the Fair
Election Act, and not to Resolution No. 9674, which "merely enforces Section 26144 of Resolution No. 9615."145

Noting that Resolution No. 9674 was nevertheless published in the Philippine Daily Inquirer and the Philippine Star
both on April 25, 2013, COMELEC adds that, in any case, "the lapse of the seven-day period from the date of its
publication has rendered the instant issue moot and academic."146

It is COMELEC which is in error on this score. Section 13 of the Fair Election Act reads:

Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The COMELEC shall promulgate and
furnish all political parties and candidates and the mass media entities the rules and regulations for the
implementation of this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and
Section 86 of the Omnibus Election Code (Batas Pambansa Bldg. 881).

Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the
seventh day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said
rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be
published or broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election
offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas
Pambansa Bldg. 881). (Emphasis supplied)

Resolution No. 9615 is denominated "Rules and Regulations Implementing Republic Act No. 9006, otherwise known
as the 'Fair Election Act', in connection to [sic] the 13 May 2013 National and Local Elections, and Subsequent
Elections[.]"

The only conceivable reason that would lead COMELEC to the conclusion that it is only Resolution No. 9615 (and not
the assailed Resolution No. 9674) that needs to comply with the requirement of Section 13 of the Fair Election Act is
Section 13's use of the phrase "rules and regulations for the implementation of this Act[.]" That is, since Resolution
No. 9615 is the Resolution which, by name, is called the "Rules and Regulations Implementing Republic Act No. 9006,"
COMELEC seems to think that other rules named differently need not comply.

It is an error to insist on this literal reasoning.

Section 13 applies to all rules and regulations implementing the Fair Election Act, regardless of how they are
denominated or called. COMELEC's further reasoning that what Resolution No. 9674 intends to implement is
Resolution No. 9615 and not the Fair Election Act itself is nothing but a circuitous denial of Resolution No. 9674's true
nature. COMELEC's reasoning is its own admission that the assailed Resolution supplements what the Implementing
Rules and Regulations of the Fair Election Act provides. Ultimately, Resolution No. 9674 also implements the Fair
Election Act and must, thus, comply with the requirements of its Section 13.

Accordingly, Resolution No. 9674 could not have become effective as soon as it was published in the Philippine Daily
Inquirer and the Philippine Star on April 25, 2013. Taking into consideration the seven-day period required by Section
13, the soonest that it could have come into effect was on May 2, 2013.

This notwithstanding, petitioners were not bound to comply with the requirement "to submit within three (3) days
from receipt of this Resolution the names of all commissioners and payors of surveys published from February 12,
2013 to the date of the promulgation of this Resolution[.]"147 As shall be discussed, COMELEC's (continuing) failure
to serve copies of Resolution No. 9674 on petitioners prevented this three-day period from even
commencing.cralawlawlibrary

XI

Petitioners point out that they were never served copies of Resolution No. 9674. Thus, they claim that this Resolution's
self-stated three-day period within which they must comply has not begun to run and that COMELEC's insistence on
their compliance violates their right to due process. They add that COMELEC has also failed to provide them with
copies of the criminal complaint subject of E.O. Case No. 13-222 for which the Subpoena dated July 1, 2013 was issued
against them.

COMELEC, however, insists that "[petitioners were given fair notice of the Resolution"148 in that:

[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only makes reference to the Resolution by its
number and title but also indicates its date of promulgation, the two newspapers of general circulation in which it was
published, it date of publication, and, more important [sic], reproduces in full its dispositive portion[.]149

COMELEC adds that, in any case, petitioners were "able to secure a certified true copy of the [assailed] Resolution."150
On the filing of a criminal complaint, COMELEC asserts that attached to the Subpoena served on petitioners was a copy
of Resolution No. 13-0739 of the COMELEC En Bane which "provides a verbatim reproduction of the Memorandum of
the Director of the Law Department detailing petitioners' failure to comply with the assailed Resolution and of the
Memorandum of Commissioner [Christian Robert S.] Lim submitting the matter for the appropriate action of the
COMELEC en bane."151

COMELEC relies on infirm reasoning and reveals how, in criminally charging petitioners, it acted arbitrarily, whimsically,
and capriciously, and violated petitioners' right to due process.

By its own reasoning, COMELEC admits that petitioners were never actually served copies of Resolution No. 9674 after
it was promulgated on April 23, 2013. It insists, however, that this flaw has been remedied by service to petitioners of
the May 8, 2013 Notice which reproduced Resolution No. 9674's dispositive portion.

Dismembering an official issuance by producing only a portion of it (even if the reproduced portion is the most
significant, i.e., dispositive, portion) is not the same as serving on the concerned parties a copy of the official issuance
itself. Petitioners may have been informed of what the dispositive portion stated, but it remains that they were never
notified and served copies of the assailed Resolution itself. In Resolution No. 9674's own words, compliance was
expected "within three (3) days from receipt of this Resolution[,]"152 not of its partial, dismembered, reproduction.
Not having been served with copies of Resolution No. 9674 itself, petitioners are right in construing the three-day
period for compliance as not having begun to run. From this, it follows that no violation of the requirement "to submit
within three (3) days from receipt of this Resolution the names of all commissioners and payors of surveys published
from February 12, 2013 to the date of the promulgation of this Resolution[.]"153 could have been committed. Thus,
there was no basis for considering petitioners to have committed an election offense arising from this alleged violation.

It is of no consequence that the May 8, 2013 Notice warned petitioners that failure to comply with it "shall constitute
an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election
Code."154 It is true that the Omnibus Election Code has been in force and effect long before Resolution No. 9674 was
promulgated; nevertheless, the supposed violation of the Omnibus Election Code rests on petitioners' alleged non-
compliance with Resolution No. 9674. This is a matter which, as we have demonstrated, is baseless, the three-day
period for compliance not having even commenced.

It is similarly inconsequential that petitioners were subsequently able to obtain certified true copies of Resolution No.
9674. Petitioners' own diligence in complying with the formal requirements of Rule 65 petitions filed before this court
cannot possibly be the cure for COMELEC's inaction. These certified true copies were secured precisely to enable
petitioners to assail COMELEC's actions, not to validate them. It would be misguided to subscribe to COMELEC's
suggestion that petitioners' diligence should be their own undoing. To accede to this would be to effectively intimidate
parties with legitimate grievances against government actions from taking the necessary steps to comply with (formal)
requisites for judicial remedies and, ultimately, prevent them from protecting their rights.

COMELEC's error is compounded by its failure to provide petitioners with copies of the criminal complaint subject of
E.O. Case No. 13-222. COMELEC has neither alleged nor proven that it has done so. Per its own allegations, all it did
was serve petitioners with the May 8, 2013 Notice and the July 1, 2013 Subpoena.

These facts considered, it was not only grave error, but grave abuse of discretion, for COMELEC to pursue unfounded
criminal charges against petitioners. In so doing, COMELEC violated petitioners' right to due process.

WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC Resolution No. 9674 is upheld, and respondent
Commission on Elections is ENJOINED from prosecuting petitioners Social Weather Stations, Inc. and Pulse Asia, Inc.
for their supposed violation of COMELEC Resolution No. 9674 in respect of their non-submission of the names of all
commissioners and payors, including subscribers, of surveys published during the campaign period for the 2013
elections.