Since when did the Commission on Elections (Comelec) become a pandemic czar that it could restrict the movement and activities of candidates, political parties, and even private persons exercising their freedom of choice and expression in holding political rallies or activities?
Under its Resolution No. 10732 issued on November 24, 2021, the Comelec imposed an additional requirement for both candidates and non-candidates when it arrogated upon itself the power and authority to first “approve” the conduct of a rally before the applicant could get a Mayor’s permit. This is a flagrant violation of Section 87 of the Omnibus Election Code (OEC) and Batas Pambansa 880 or the Public Assembly Act which give sole authority to the mayors to issue such permit.
What used to be a mere act of the mayor in issuing the said permit to hold the rally would now need the concurrence of the five (5) members of the Comelec’s Campaign Committee (CCC) composed of the Comelec and representatives of the Department of Health, Department of Interior and Local Government, Philippine National Police and the Armed Forces of the Philippines.
There is nothing in the above-cited laws that provides for Comelec’s intervention in granting such permit under any circumstances. For sure, this is not one of the powers of the Comelec defined under the Constitution which is limited to the enforcement of laws relative to the conduct of elections. Comelec may issue rules to implement election laws, but it cannot prescribe what the laws do not provide. The Comelec might find some gaps in the law, but it is not its function to supply the gaps since its function is not legislative.
For instance, under its “guidelines”, the Comelec sets its own “Alert Levels”; the rules on “authorized persons outside of residence” who could participate in such political actions; wearing of face shields with face masks; persons who are not allowed to join therein like those below 18 years of age and those over 65 years of age; only people “belonging to same households” could join in same vehicle, and such other “guidelines” which are clearly not within the power of the Comelec to prescribe as there is no law allowing it to provide therefor.
What makes the “guidelines” frivolous is that it placed private persons who are non-candidates in the same level of candidates and political parties in that if a group of private persons would like to hold rallies and express their preferences in the election, they are also required to seek said approval from the CCC. The same is true if they will be conducting their own private campaign activities, like distributing campaign materials where prior CCC approval is now being required by Comelec. What a very absurd political situation.
This is clearly a violation of the people’s right to peaceably assemble and their right to freedom of expression. The Comelec should be reminded that the Supreme Court held in the 2015 case of the Diocese of Bacolod vs Comelec, that “the Comelec does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case.”
While there is still time, since the campaign period for local candidates has not yet started, the Comelec should probably review its aforesaid guidelines by leaving it to the mayors the sole power to issue said permits. Thus, the Comelec could concentrate more on pressing election related matters instead of intervening in the functions of other agencies of the government which apparently are not within their functions and powers.
If Comelec’s objective is to assist in containing the pandemic, we already have the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (“IATF”) taking the lead on this and its guidelines even apply to both candidates and non-candidates. IATF is still well functioning even during this campaign period so there is no need for Comelec intervene in IATF’s functions.
Surely, our voters should be given utmost opportunity to be able to intelligently select the best candidates and thereafter vote without being under duress; but how can voters select the best candidates if public discourse and free speech even by private individuals are unduly restricted? This opportunity to educate the voters by elevating the level of political discourse is precisely one of the reasons why the Supreme Court declared Comelec’s action, in the case of Diocese of Bacolod, as restrictive of free speech and therefore, unconstitutional.
While Comelec’s objective in assisting in the current public health concern is noble, it will serve our country best if Comelec remains true to its purpose, and not to be distracted by matters that are already handled by other government agencies.
In the 1992 case of Adiong vs Comelec, the late Justice Isagani A. Cruz in his separate opinion reminded the Comelec that it should not “impose all manner of silly restraints (for) reaching the electorate is precisely the purpose of an election campaign, but the Comelec obviously believes that the candidates should be as quiet as possible.” And while Comelec might be pursuing the ideal of democratic elections, Justice Cruz added that “it is barking up the wrong tree.” -30-
ATTY. ROMULO B. MACALINTAL
Election lawyer
Las Pinas City