by: Atty. Gregorio B. Austral, CPA
The “Fair Election Act”
One of the avowed policies of our 1987 Constitution is that ‘the State shall guarantee equal access to opportunities for public service’ (Sec. 26, 1987 Constitution). Pursuant to this constitutional policy, the Fair Election Act (Republic Act No. 9006) was enacted to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and assure free, orderly, honest, peaceful and credible elections (Sec. 2).
To achieve this objective, RA 9006 allows registered political parties, sectoral parties and organizations and all bona fide candidates for national and local elective positions to use election propaganda subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the COMELEC (Sec. 3).
The law defines lawful election propaganda to include pamphlets, leaflets, cards, decals, stickers or other written or printed, handwritten or printed letters, cloth, paper or cardboard posters, paid advertisement in print or broadcast media, and all other forms of election propaganda not prohibited by the Omnibus Election Code and RA 9006 (Secs. 3.1 to 3.5). The law even gives the maximum size of tarpaulins and other campaign materials.
Election surveys are also regulated by RA 9006. All persons, natural or juridical, candidate or organization who publishes a survey must likewise publish the name of the person, candidate, party or organization who commissioned or paid for the survey, the name of the person, firm or organization who conducted the survey, the period of the survey, the methodology used, number of respondents and the specific questions asked, margin of error of the survey, and the names, mailing address and telephone number of the sponsor.
In the 2013 national and local elections, COMELEC issued Resolution No. 9674 which directed SWS, Pulse Asia and other survey firms to submit the names of all commissioners and payors of all surveys published from February 12, 2013 to April 23, 2013, including those of their subscribers. SWS and Pulse Asia questioned the legality of the resolution before the Supreme Court on the ground that it violates the constitutional proscription against impairment of contracts, among others.
The Supreme Court upheld the validity of Resolution No. 9674. It ruled that 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 “guaranteeing equal access to opportunities for public service.” 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 (Social Weather Stations, Inc. and Pulse Asia, Inc. vs. Commission on Elections, G.R. No. 208062, April 7, 2015).
The Fair Election Act also guarantees equal access to media and time space. Print advertisements shall not exceed one-fourth (1/4) page, in broad sheet and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or other publications. For TV advertisements, each bona fide candidate or registered political party for a nationally elective office is entitled to not more than 120 minutes of TV ads and 180 minutes of radio ads whether by purchase or donation. For local candidates, they are allowed 60 minutes for TV ads and 90 minutes for radio ads (Sec. 6).
All registered parties and bona fide candidates have the right to reply to charges published against them. The reply shall be given publicity by the newspaper, television and/or radio station which first printed or aired the charges with the same prominence or in the same page or section or in the same time slot as first statement (Sec. 10).
The objective of the law in ensuring equal opportunity for public service is noble. However, the Fair Election Act becomes effective only during election period as clearly stated under Sec. 2 of the said law. Per COMELEC Resolution No. 10695, dated February 10, 2021, the election period is from January 9 to June 8, 2022. This is the only period covered by the law. It is noted that many national and local electoral candidates invest heavily on public relations such as TV and newspaper ads to build up their election bid prior to the election period and this is the period which is not regulated by law. Hence, politicians more often than not take advantage of this time by publishing advertisements which send a subliminal message of their intention to run for public office. Politicians who have more media mileage during the pre-election period have comparative advantage over the others.
It is noted that the Fair Election Act only guarantees equal opportunity for public service. Although there is a law that regulates the amount of expenses that a candidate may spend for his campaign, anecdotal observation and some studies show that this limit is not observed. As a result, political parties which have more financial resources and strong political machineries are likely to win more seats in the government. But have we elected the right person to the position? This question is gradually answered as the elected official serves his term. Sometimes, it is hit-and-miss adventure and we are lucky if we have chosen the right one.
Rule of Law believes that the true test of a free, honest and credible elections lies in the fact that the voters are given free access to fair and accurate information on the candidates’ qualifications, integrity and ability to lead our country, and on the bases of these information, they can freely exercise their right of suffrage without undue influence of money and threat. More importantly, the results of the elections must faithfully reflect the will of the people without any suspicion of electoral fraud.