Petition v SWS Pulse

Republic of the Philippines

COMMISSION ON ELECTIONS Intramuros, Manila

LORENZO “LARRY” GADON, KATIPUNAN NG DEMOKRATIKONG PILIPINO represented herein by its Secretary General, DR. RICARDO FULGENCIO IV, Petitioners,

SPP Case No. ______________

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For: Prohibition

SOCIAL WEATHER SURVEY, PULSE ASIA RESEARCH, INC. Respondents. x-------------------------------------------------x

PETITION PETITIONERS,

LORENZO

“LARRY”

GADON

and

KATIPUNAN NG DEMOKRATIKONG PILIPINO, through counsel, and unto this Honorable Commission, hereby files this verified Petition and in support thereof states that – PREFATORY STATEMENT Article IX-C of the 1987 Philippine Constitution mandates this

Honorable Commission to, “enforce and administer all laws and regulations relative to the conduct of an election.”1 Anent to this enforcement and administration is the power to promulgate rules and regulations to “supervise or regulate media of communication or information x x x in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.”2 While it is true that the Supreme Court had sustained the conduct of media surveys in a line of jurisprudence, the late Dean Roscoe Pound3 explained, "Law must be stable but it cannot stand still." Verily, it must 1

Paragraph 1, Section 2, Article IX – C. Section 4, Article IX – C. 3 Dean of the University of Nebraska College of Law, distinguished American legal scholar and educator.

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correct itself and move in cadence with the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme Court, in many cases, has deviated from stare decisis and reversed previous doctrines and decisions.

This Honorable Commission should do no less in the present case.

NATURE AND PROPRIETY OF THE PETITION This Petition is filed pursuant to the Constitutional mandate of this Honorable Commission, to promulgate rules and regulations to supervise

or regulate media of communication or information in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Petitioners have no plain, speedy, and adequate remedy in the ordinary course of law against the herein respondents except through this Petition for Prohibition.

It is prayed for this Honorable Commission to command the respondents to cease and desist from further publishing their “erroneous”, “slanted”, and “bogus” election survey results from the start of the campaign period until election day itself.

The campaign period for the May 13, 2019 national elections starts on February 12, 2019.

1.0 THE PARTIES 1.1 Petitioner LORENZO “LARRY” GADON is a Filipino national, a registered voter and a candidate for the position of Senator of the Republic of the Philippines. He is a lawyer by profession and he may be duly served with notices and processes of this Honorable Commission at #35 7th Street, New Manila, Brgy. Mariana, Quezon City.

1.2 Petitioner KATIPUNAN NG DEMOKRATIKONG PILIPINO (KDP), represented herein by its Secretary General, DR. RICARDO FULGENCIO IV, is a political party duly recognized and registered with this Honorable Commission. It may be duly served with notices and processes of this Honorable Commission at Suite 406 Pasda Bldg., G. Araneta Avenue, Brgy. Sto. Domingo, Quezon City.

1.3 Respondent SOCIAL WEATHER STATIONS (SWS), is a private social research institution and a public-opinion polling body in the Philippines. It may be served with summons and other legal processes of this Honorable Commission at its business address at 52 Malingap Street, Sikatuna Village, Quezon City. Respondent SWS is represented in this

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instance by its President and Chief Executive Officer, DR. MAHAR K. MANGAHAS. 1.4 Respondent PULSE ASIA RESEARCH, INC. (PULSE ASIA) is a domestic corporation engaged in public opinion polling. It may be served with summons and other legal processes of this Honorable Commission at its business address at PSSC Building, Commonwealth Avenue, Quezon City.

Respondent PULSE ASIA is represented in this instance by its President, Mr. RONALD D. HOLMES. 2.0 STATEMENT OF MATERIAL FACTS OF THE CASE 2.1 On October 12, 2018 petitioner GADON filed his Certificate of Candidacy (COC) for Senator before this Honorable Commission. He was nominated by the Kilusang Bagong Lipunan (KBL), a national political party.

2.2 The KDP nominated six (6) personalities to run as Senators under their own slate. The final list of senatorial candidates under KDP includes Butch Valdes, Lady Ann Sahidulla, Lemecio Roxas, Edmundo Casiño, Atty.

Glenn Chong, and Rodolfo Javellana, Jr. 2.3 A month before the filing of COCs, respondent PULSE ASIA published its 2019 Senatorial Preferences4. The survey was based on the responses of 1,800 registered voters. Sen. Grace Poe was allegedly preferred by 70.1% of the voters.

2.4 On or about October 11, 2018, respondent SWS published the results of the survey commissioned by then Secretary Francis Tolentino on the Senatorial Preferences of the Philippines.5 Sen. Cynthia Villar topped the survey with 53%. It was claimed to be done using face-to-face interview of 1,500 adults nationwide, 600 in Balance Luzon, and 300 each in Metro Manila, Visayas, and Mindanao.

2.5 As early as this, the results of the SWS surveys were inconsistent as admitted by respondent SWS’s own Deputy Director for Surveys, Vlad Licudine.6 2.6. Published in early January 2019, respondent SWS conducted a survey from December 8, 2018 to December 16, 2018 for the 2019 Senate Race.

4

https://news.abs-cbn.com/focus/multimedia/infographic/09/24/18/2019-senatorial-preferencespulse-asia

5

https://news.abs-cbn.com/news/10/11/18/reelectionists-comebackers-top-2019-senatorialsurvey-sws

6

https://news.abs-cbn.com/news/10/13/18/sws-different-lists-of-candidates-led-to-variedsenatorial-rankings-in-2-surveys

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Surprisingly, non-senatorial candidates Sara Duterte-Carpio (27%) and Erwin Tulfo (26%) was included in the Magic 12.7 2.7. On January 2, 2019, the Philippine Star published the survey conducted by SWS from December 16, 2018 to December 19, 2018, again using a face-to-face interview on 1,500 subjects. The news article ended with the following paragraph“Other senatorial candidates who obtained single-digit voter preferences were volunteer doctor and former STAR columnist “Doc Willie” Ong, singer Freddie Aguilar, former presidential spokesman Harry Roque, former broadcast journalist Jiggy Manicad, former congressman Neri Colmenares, Melchor Chavez, Dado Padilla, Maguindanao Rep. Zajid Mangudadatu, Lemy Roxas, Larry Gadon, women’s rights advocate Samira Gutoc, human rights lawyer Jose Manuel “Chel” Diokno and former interior chief Rafael Alunan.” (Emphasis and underscoring ours.)

2.8. It has to be noted and emphasized that other surveys conducted through other means, by other entities and not by any of the respondents, would show otherwise. This would be discussed further as part of this petition’s arguments.

Clearly, the survey results of the respondents, pertinent to the 2019 senatorial race is flawed, if not outright “fake”8.

3.0 SUBMISSIONS 3.1 RESPONDENTS SOCIAL WEATHER STATIONS AND PULSE ASIA RESEARCH, INC. SHOULD BE RESTRAINED AND PROHIBITED FROM PUBLISHING FLAWED AND “FAKE” SURVEY RESULTS RELATIVE TO THE 2019 NATIONAL ELECTIONS. 3.2 THE PROHIBITION ON RESPONDENTS PUBLICATION OF FLAWED AND “FAKE” SURVEY RESULTS RELATIVE TO THE 2019 NATIONAL ELECTIONS CANNOT BE CONSIDERED A PRIORRESTRAINT TO THE CONSTITUTIONALLY GUARANTEED FREEDOM OF SPEECH. 7

https://www.rappler.com/nation/192837-sara-duterte-senate-race-sws-survey

8

https://dictionary.cambridge.org/us/dictionary/english/fake fake [noun] - “an object that is made to look real or valuable in order to deceive people.”

(Emphasis and underscoring ours.)

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4.0 DISCUSSIONS AND ARGUMENTS Respondents should be restrained and prohibited from publishing flawed and “fake” survey results relative to the 2019 National Elections.

4.1 Based on available online reports, respondents SWS and PULSE ASIA were founded by several fellows way back in 1985 and 1999, respectively.

However, there is a common denominator in these two survey firms – both were founded by University of the Philippines (UP) Professor Felipe B. Miranda.

4.2. Initially, Pulse Asia, Inc. was founded as “for profit” organization and was later reformed in 2013 as a “nonprofit” organization and at the same time renamed Pulse Asia Research, Inc. 4.3 The accusation of publishing biased and inaccurate polling is not new to respondents PULSE ASIA and SWS. In fact, according to Pwersa ng Masang Pilipino (PMP) then senatorial candidate Francisco “Kit” Tatad in 2010, citing a research paper and documents from the Securities and Exchange Commission (SEC), he said that members of the Aquino clan and former associates of the late President Corazon Aquino are directors and stockholders of SWS and Pulse Asia. “This suggests that there was a plan from the beginning by the Aquinos to control public opinion polling in the country,” Tatad said.9 4.4. In a recently concluded senatorial survey conducted by UP Diliman, former Bayan Muna partylist representative Neri Colmenares topped the magic 12 garnering 52% of the straw votes.10 In the social media arena, @Halalan2019 Twitter user conducted a poll from January 7 to January 9, 2019, which showed Colmenares topping the survey again.

4.5. The Social Media 2019 Senatorial Survey was conducted from January 1 to January 9, 2019 and showed an entirely different scenario. Dr. Willie Ong topped this survey. Currently completing the rest of the magic 12 are Bong Go, Larry Gadon, Roland Bato Dela Rosa, Imee Marcos, Glenn Chong, Harry Roque, Pia Cayetano, Cynthia Villar, Francis Tolentino, Raffy Alunan and Juan Ponce Enrile.11 It has to be emphasized that the number of respondents in this survey is about 55,000 - a lot more than the mere 1,800.

9

https://www.philstar.com/headlines/2010/05/06/572409/noynoy-kin-allies-behind-pulse-sws

10

https://abogado.com.ph/bet-ng-mga-isko-colmenares-topped-up-senatorial-survey/

https://www.tataydigong.info/colmenares-leads-senate-poll-diokno-gutoc-in-top-12-updiliman/ 11

https://www.facebook.com/events/2228965660703176/permalink/2228972074035868/

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4.6. The surveys wherein the traditional politicians did not top the list were never published in the mainstream media nor broadcasted in primetime television. However, all survey results released by respondents SWS and PULSE ASIA are printed in newspapers and reported in prime time news.

What is the meaning of all of these?

As exposed by Tatad, it seems that public opinion polling are controlled by the herein respondents.

4.7. Respondents have not even revealed to the public the exact method by which they conducted the supposed “fair” election surveys. In order to have a meaningful (meaning, reflective of the true population) survey results four (4) factors need to be properly defined. These are the actual population size, confidence interval, confidence level, and margin of error.

According to Qualtrics12, the sample size should be increased to minimize the effect of errors. For example in a population size of 55 million voters, using a confidence level of 99% and a margin of error of 1%, the sample size should be at least 16,572. Respondents’ sample size (i.e. 1,500 and 1,800) are too far from this “correct” sample size of 16,572.

4.8. With all these discrepancies and the very small sampling population for surveys conducted by the respondents, it is evident that the results are erroneous, if not totally manufactured or “fake”.

This is seemingly a mind conditioning scheme of the respondents to make it appear before the voting public that their chosen candidates are preferred, when in fact they are not. Who knows, this might even be a prelude to an electronic cheating mechanism, where this Honorable Commission will suffer the backlash in the end.

4.9. There is now an urgent need for this Honorable Commission to step in and stop this nefarious scheme of the respondents. Allowing the continued publication of these questionable surveys will run counter to this Honorable Commission’s avowed objective of holding free, orderly, honest, peaceful,

and credible elections.

12

https://www.qualtrics.com/blog/calculating-sample-size/ “Wider confidence intervals increase the certainty that the true answer is within the range specified. These wider confidence intervals come from smaller sample sizes. When the costs of an error is extremely high (a multi-million dollar decision is at stake) the confidence interval should be kept small. This can be done by increasing the sample size.”

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The prohibition on respondents publication of flawed and “fake” survey results relative to the 2019 National Elections cannot be deemed a prior-restraint to the constitutionally guaranteed freedom of speech.

5.0. Issuance of a resolution that will prohibit and regulate the publication of inaccurate and biased election survey results during the election period, particularly this 2019 National Elections, cannot be deemed a priorrestraint to the constitutionally guaranteed freedom of speech.

The regulation can be considered a valid content-neutral regulation and, thus, does not impinge on the constitutional right to freedom of speech. This is within the constitutional power of this Honorable Commission pursuant to Sections 213 and 414, Article IX-C of the Constitution, which is totally unrelated to the suppression of free expression.

5.1. A content-neutral regulation, i.e., which is merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards, is constitutionally permissible, even if it restricts the right to free speech, provided that the following requisites concur: first, the government regulation is within the constitutional power of the Government; second, it furthers an important or substantial governmental interest; third, the governmental interest is unrelated to the suppression of free expression; and fourth, the incidental restriction on freedom of expression is no greater than is essential to the furtherance of that interest.15 5.2. In a series of jurisprudence, the Supreme Court had upheld the right of organizations to conduct and publish election surveys. It ruled that prohibiting the publication of election survey results affecting candidates lays a prior restraint on freedom of speech, expression, and the press.16 However, the high Court unequivocally stated – 13

SECTION 2 (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

14

SECTION 4. The Commission may, during the election period, 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. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

15

1-United Transport Koalisyon (1-Utak) v. COMELEC, G.R. No. 206020 (2015).

16

SWS, Inc. et. al. v. COMELEC, G.R. No. 147571 (2001).

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“Thus, under the Administrative Code of 1987, the COMELEC is given the power: “To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. (Underscoring supplied.)

“This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas.”

(Emphasis ours.)

Verily, as the Supreme Court had decided, this Honorable Commission, pursuant to its constitutionally mandated powers, can confiscate bogus survey results calculated to mislead voters.

5.3. Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant to add meaning to the equally vital right of suffrage.17 However, in this particular instance, the questioned dissemination of election survey results is not “meant to add meaning to the equally vital right of suffrage” but rather to frustrate it.

5.4 From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society.18 (Emphasis supplied.)

17

ABS-CBN Broadcasting Corporation v. Commission On Elections, G.R. No. 133486 (2000).

18

Chavez v. Gonzales et. al., G.R. No. 168338 (2008).

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Indeed, the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the restraint of such freedom. The reality is that election survey results, published by the herein respondents, are calculated to mislead voters – and thus, may be subject to the regulation, if not outright prohibition, of this Honorable Commission.

5.5. In fact, the case of Chavez even emphasized that , “Certain previous restraints may be permitted by the Constitution” Even if Philippine jurisprudence has recognized four aspects of freedom of the press “its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate.”19 (Emphasis supplied.)

5.6. The Court also admitted that the “constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case.”20 (Emphasis ours.)

Verily, this instant case must be decided based on its own merits and not simply struck down by this Honorable Commission and considered an infringement on free speech.

5.7. Justice Panganiban’s dissenting opinion in the case of Osmea v.

COMELEC, G.R. No. 132231 (1998), is worth rereading. He said – “Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad ban to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent urges reverence for the stability of judicial doctrines. I submit, however, the more important than consistency and stability are the verity, integrity and correctness of jurisprudence. As Dean Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must correct itself and move in cadence with the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme Court, in many cases, has deviated from stare decisis and reversed previous doctrines and decisions. It should do no less in the present case.”

(Emphasis ours.)

19

Ibid.

20

Ibid.

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PRAYER Henceforth, it is respectfully prayed before this Honorable Commission that the instant Petition be given due course and that respondents SOCIAL WEATHER STATIONS

and

PULSE ASIA RESEARCH, INC. be

DIRECTED to CEASE AND DESIST from publishing bogus survey results calculated to mislead voters pertinent to the position of Senator relative to the May 13, 2019 National Elections from the start of the campaign period until election day.

Petitioners likewise pray for such other relief and remedies as may be just and equitable under the premises.

RESPECTFULLY SUBMITTED. Makati City for City of Manila, 18 January 2019.

AL S. VITANGCOL III Counsel for Petitioners 5th Floor, Philamlife Building 126 Leviste Street, Salcedo Village Makati City 1227

Email Address: avalaw@justice.com Mobile Number: (0917)502-5336 Roll No. 48410 PTR No. 7338451-1.04.2019-Makati City IBP Lifetime Member No. 011378 – 01.09.2013 MCLE Compliance No. V-0026226 – 01.08.2018 COPY FURNISHED/EXPLANATION: SOCIAL WEATHER STATIONS 52 Malingap Street, Sikatuna Village, Quezon City PULSE ASIA RESEARCH, INC. PSSC Building, Commonwealth Avenue, Quezon City (Pursuant to Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure, the foregoing pleading was served upon the above party by registered mail due to the distances involved, time constraint, and lack of messengerial personnel.)