The Commission on Election (Comelec) should focus 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, a veteran poll lawyer said on Thursday, Feb. 10.

In a statement, election lawyer Romulo B. Macalintal mentioned that the poll body should probably review its guidelines by leaving it to the mayors the sole power to issue said permits for campaign activities since the campaign period for local candidates has not yet started.

Under Comelec's Resolution No. 10732 issued on Nov. 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.

Macalintal called this 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 permits.

"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?" he said.

Macalintal recalled that before, it was merely the mayor who issues the said permit to hold the rally but now it would 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 (DOH), Department of Interior and Local Government (DILG), Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP).

It is not stated in the above-cited laws, according to him that the Comelec can intervene in granting such a permit under any circumstances and said that it is surely not one of the powers of the poll body 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," Macalintal explained.

He cited one of Comelec's “guidelines”, wherein it crafted 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.

He added that 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.

Macalintal pointed out that 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',” he said.

The veteran poll lawyer stated that if Comelec wants to assist in containing the pandemic, the country already has 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 and that the IATF is still well functioning even during this campaign period so there is no need for the poll body to 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?" he said.

"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," he added.

He then cited the 1992 case of Adiong vs Comelec, in which 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.”