Comelec’s acting like pandemic czar restricts citizens’ rights–Macalintal 

THE Commission on Elections (Comelec) cannot use the pandemic for “frivolous” impositions that unduly “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,” a veteran election lawyer said Friday. 

Atty. Romulo B. Macalintal said in a statement sent to the BusinessMirror said that while the continuing pandemic still warranted health protocols to prevent events that could be “superspreaders” for Covid-19, the poll body cannot use this to prevent activities that are at the heart of the elections, such as private gatherings to discuss the advocacies of candidates. Macalintal said the Comelec should not be “distracted” by such tasks that are better left to the Inter-Agency Task Force on Emerging Infectious Diseases (IATF). 

He particularly denounced Comelec Resolution No. 10732 issued on November 24, 2021, imposing an additional requirement for both candidates and non-candidates, thus arrogating 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 gives sole authority to the mayors to issue such permit,” said Macalintal. 

“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 members of the Comelec’s Campaign Committee (CCC) composed of the Comelec and representatives of the Department of Health, Department of the Interior and Local Government, Philippine National Police and the Armed Forces of the Philippines,” he noted. 

There is nothing in existing laws that provides for Comelec’s intervention in granting such permit under any circumstances, he stressed. “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, he noted that 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 facemasks; 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, Macalintal said, “are clearly not within the power of the Comelec to prescribe as there is no law allowing it to provide therefor.” 

The guidelines, he said with alarm, “placed private persons who are non-candidates on 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.” 

He called it a clear “violation of the people’s right to peaceably assemble and their right to freedom of expression,” and pointed to the Supreme Court’s 2015 ruling in Diocese of Bacolod vs Comelec, which held 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.” 

He also cited the 1992 case of Adiong vs Comelec, where 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.”

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