dissenting OPINION

CRUZ, J.:

It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is nothing more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty in another obeisance to the police state, which we so despised during the days of martial law. I cannot share in the excuses of the Court because I firmly believe that the highest function of authority is to insure liberty.

In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. My quarrel is with the way the objective is being pursued for I find the method a most indefensible repression. It does little good, I should think, to invoke the regulatory authority of the Commission on Elections, for that power is not a license to violate the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject to the requirements of the police power which the ponencia seems to disdain.

It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the challenged act is presumed to be valid in deference to the political departments. But not - and this represents a singular exception - where the act is claimed to violate individual liberty, most importantly the freedom of expression. In such a vital and exceptional case, as in the case now before us, I respectfully submit that the presumption must be reversed in favor of the challenge.

Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above all liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights include the equally important freedom of the press, the right of assembly and petition, the right to information on matters of public concern, the freedom of religion insofar as it affects the right to proselytize and profess one's faith or lack of it, and the right to form associations as an instrument for the ventilation of views bearing on the public welfare.

Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the guaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that is first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of the press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972. The reason for this precaution is that freedom of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be wielded by every citizen in the land, be he peasant or poet and, regrettably, including the demagogue and the dolt - who has the will and the heart to use it.

As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a duty. From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to be the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options, let alone the latitude with which they are considered, can insure a far better choice than that made by the heedless dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.

The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolism can also signify meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of belligerence. The individual can convey his message in a poem or a novel or a tract or in a public speech or through a moving picture or a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be heeded, for acceptability will depend on the quality of his thoughts and of his persona, as well as the mood and motivation of his audience. But whatever form he employs, he is entitled to the protection of the Constitution against any attempt to muzzle his thoughts.

There is one especially significant way by which the citizen can express his views, and that is through the ballot. By the votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the various elective offices in the government, from the highest position of President of the Philippines to that of the lowly member of the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his intelligence (or lack of it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any other candidate with no known distinction except the presumptuousness to seek elective office. Fortunately, there are also other candidates deserving of the support of the circumspect and thinking citizens who will use their suffrages conscientiously with only the public interest as their criterion and guide.

It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they are allowed to campaign during the election period. Such campaign includes their personally visiting the voters in house-to-house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-serving leaflets extolling their virtues, giving away buttons and stickers and sample ballots and other campaign materials, and holding caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to do in the specified places and at the proper time provided only that they do not exceed the maximum limit of election expenses prescribed by the Election Code at the rate of P1.50 for every voter currently registered in the constituency where they filed their certificate of candidacy.^[1]

It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or placards or posters or meetings to reach the electorate, incurring for this purpose a not inconsiderable amount of his or his supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of mass communication, even for free. Employment of these facilities is allowed only through the respondent Commission on Elections, which is directed by the Election Code to procure newspaper space and radio and television time to be distributed among the thousands of candidates vying throughout the land for the thousands of public offices to be filled in the coming elections.

There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights, the freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason is the language of Article III, Section 4, of the Constitution, which provides without qualification:

No law shall be passed abridging the freedom of speech, of expression or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated by law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better policy is to assume that every right, including even the freedom of expression, must be exercised in accordance with law and with due regard for the rights of others.

In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting them to certain places and hours and under specified conditions, in the interest of peace and security, public convenience, and it one case, even to prevent disturbance of the rites in a nearby church.^[2] Under the Public Assembly Act, a permit from the mayor shall be necessary for the holding of a public meeting except where the gathering is to be held in a private place or the campus of a government-owned or controlled educational institution or a freedom park.

All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as established by this Court in a long line of decisions. These requisites are: 1) the interests of the public generally as distinguished from those of a particular class require the exercise of the police power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sought to be achieved and not unduly oppressive upon individuals.^[3] In simpler terms, the police measure, to be valid, must have a lawful objective and a lawful method of achieving it.

The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent disparity between the rich and the poor candidates by denying both of them access to the mass media and thus preventing the former from enjoying an undue advantage over the latter. There is no question that this is a laudable goal. Equality among the candidates in this regard should be assiduously pursued by the government if the aspirant with limited resources is to have any chance at all against an opulent opponent who will not hesitate to use his wealth to make up for his lack of competence.

But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may be employed even if it may not be the best among the suggested options. In my own view, the method here applied falls far short of the constitutional criterion. I believe that the necessary reasonable link between the means employed and the purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.

The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies and meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited mass media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot be matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By the same token, the rich candidate may visit more houses, send more letters, make more telephone appeals, distribute more campaign materials, incurring for all these more expenses than the poor candidate can afford. But these advantages are allowed by the law because they do not involve the use of mass media space and time.

And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is raised for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would be prohibited under the law although the rich candidate clearly has in this case no advantage over his adversary.

And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio commentator who is apparently expressing his own opinion without financial consideration or inducement? This is not prohibited by Section 11(b) simply because the endorsement does not appear to have been purchased by the candidate or given to him for free.

The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of candidates running all over the country for the offices of President of the Philippines, Vice-President, senators, representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the candidates would involve administrative work of unmanageable proportions, and the possibility as well of unequal distribution, whether deliberate or unintentional, that might create more serious problems than the problem at hand.

It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to resolve and its resolution may not be reviewed by the courts of justice. In the case of the police power, however, it is required that there be a plausible nexus between the method employed and the purpose sought to be achieved, and determination of this link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as remarked by Justice Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that what the law has done was valid to begin with. The trouble with the challenged law is that it has exceeded what it should have done, thereby becoming both inefficacious and arbitrary. As such, it must be slain.

But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In a word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility of finding a man base enough to accept the office of censor and at the same time good enough to perform its duties. Yet a pretender to that meddler is in our midst today, smugly brandishing the threat of this miserable law.

One could perhaps concede some permissible instances of censorship, as where private mail is screened during wartime to prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the national security or where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded theater. But these exceptions merely make and bolster the rule that there should be no prior restraint upon a person's right to express his ideas on any subject of public interest. The rule applies whether the censorship be in the form of outright prohibition, as in the cases before us, or in more subtle forms like the imposition of a tax upon periodicals exceeding a prescribed maximum number of copies per issue^[4] or allowing the circulation of books only if they are judged to be fit for minors, thus reducing the reading tastes of adults to the level of juvenile morality.^[5]

I remind the Court of the doctrine announced in Bantam Books v. Sullivan^[6] that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision appears quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to justify it in the name of social justice and clean elections cannot prevail over the self-evident fact that what we have here is an illegal intent to suppress free speech by denying access to the mass media as the most convenient instruments for the molding of public opinion. And it does not matter that the use of these facilities may involve financial transactions, for the element of the commercial does not remove them from the protection of the Constitution.^[7]

The law is no less oppressive on the candidates themselves who want and have the right to address the greatest number of voters through the modern facilities of the press, radio and television. Equally injured are the ordinary citizens, who are also entitled to be informed, through these mass media, of the qualifications and platforms of the various candidates aspiring for public office, that they may be guided in the choice they must make when they cast their ballots.^[8]

I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on the choice of our elective officials. It is truly alarming that elections in a growing number of cases have become no more than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce. The offer of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the elemental struggle for survival. That there are millions of such persons can only compound this terrible situation. But what makes it especially revolting is the way these helpless persons are manipulated and imposed upon and tantalized to surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy themselves into elective office - these are the real saboteurs of democracy. These are the scoundrels who would stain the pristine ballot in their cynical scheme to usurp public office by falsifying the will of the people. Section 11(b) aims to minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on Elections relies heavily on Badoy v. Commission on Elections^[9] to sustain the exercise of its authority to regulate and supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No. 6132 providing as follows:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially among all candidates within the areas in which the newspapers are circulated. Outside of said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other candidates in the district in which the candidate is running are also mentioned with equal prominence.

The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo), declared:

Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of R.A. No. 6132 designed to maximize, if not approximate, equality of chances among the various candidates in the same district, the said restriction on the freedom of expression appears too insignificant to create any appreciable dent on the individual's liberty of expression.

What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What Section 11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that finds no justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass media as a vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to create any appreciable dent on the individual's liberty of expression."

What is in point is Sanidad v. Commission on Elections,^[10] where this Court, through Mr. Justice Medialdea, unanimously declared unconstitutional a regulation of the Commission on Elections providing as follows:

Section 19. Prohibition on columnists, commentators or announcers. - During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues.

On the argument that the said persons could still express their views through the air time and newspaper space to be allocated by the respondent, the Court declared:

Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgment. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. (Emphasis supplied).

This decision was promulgated without a single dissent, even from the incumbent members then who are now sustaining Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in this decision upholding the prohibition in question.

The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight of the poor candidate thus:

Respondent Commission invites appreciation of the realities of present-day political campaigns. In today's election competitions the success of one's candidacy rests to a great extent on the candidate's ability to match the financial and material resources of the other. Where a candidate is given limitless opportunity to take his campaign to areas of persuasion through the media, what is left of a winning chance for a poor, if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act No. 6646, a wealthy candidate could block off an opponent of lesser means from the public view by buying all print space in newspapers and air time in radio and television.

I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the poor candidate vis-a-vis a wealthy opponent determined to win at all costs (which he can afford). However, for all its anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.

The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not be carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the Constitution to supervise or regulate the operations of the mass media in connection with election matters, and we may expect that it will use this power to prevent the monopoly it fears, which conceivably will consume all the funds the candidate is allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as long as he does not exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere fact that the poor candidate can spend only a small fraction of that amount does not prevent the rich candidate from spending all of it if he is so minded. This may be a heartless way of putting it, but that is in fact how the law should be interpreted. The Election Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the rich candidate shall spend only the same amount as the poor candidate can afford.

I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our intelligence and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the free society. As part of the larger picture, these impositions are only minor irritations that, placed in proper perspective, should not justify the withdrawal of the great and inalienable liberty that is the bedrock of this Republic. It is best to remember in this regard that freedom of expression exists not only for the thought that agrees with us, to paraphrase Justice Holmes, but also for the thought that we abhor.

I submit that all the channels of communication should be kept open to insure the widest dissemination of information bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for public office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible aberration of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume of victory.

For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the challenged law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the Constitution that will ruthlessly bleed it white, and with it this most cherished of our freedoms.

^[1] Sec. 100, Omnibus Election Code.

^[2] Navarro v. Villegas, 31 SCRA 731; Reyes v. Bagatsing, 125 SCRA 533; Tañada v. Bagatsing, G.R. No. 68273, August 18, 1984; Aquino v. Bagatsing, G.R. No. 68318, August 18, 1984; De la Cruz v. Ela, 99 Phil. 346.

^[3] U.S. v. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Case v. Board of Health, 24 Phil. 250; Taxicab Operators of Metro Manila v. Board of Transportation, 119 SCRA 596; Bautista v. Juinio, 127 SCRA 329; Lozano v. Martinez, 146 SCRA 323; Lorenzo v. Director of Health, 50 Phil. 595; People v. Chan, 65 Phil. 611; Department of Education v. San Diego, 180 SCRA 533; Ynot v. IAC, 148 SCRA 659.

^[4] Grosjean v. American Press Co., 297 U.S. 233.

^[5] Butler v. Michigan, 352 U.S. 380.

^[6] 372 U.S. 58.

^[7] Valentine v. Chrestensen, 316 U.S. 52; New York Times Co. v. Sullivan, 376 U.S. 254; Bigelow v. Virginia, 421 U.S. 809; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S. 748.

^[8] Coleman v. MacLennon, 78 Kan. 11, cited in New York Times Co. v. Sullivan, 376 U.S. 254.

^[9] 35 SCRA 285.

^[10] 181 SCRA 529.