'Potentially unconstitutional': Election lawyers call out Comelec's permit requirement

Jauhn Etienne Villaruel, ABS-CBN News

Posted at Feb 09 2022 10:09 PM

The Partido Lakas ng Masa ABS-CBN News
The Partido Lakas ng Masa candidates for Halalan 2022, led by presidential hopeful Leody de Guzman, hold their proclamation rally at the Bantayog ng mga Bayani in Quezon City on Feb 8, 2022 despite having no permit from the Comelec. Mark Demayo, ABS-CBN News

MANILA — The Commission on Elections (Comelec) on Tuesday insisted that its unprecedented guidelines on in-person campaigning "were not designed for convenience" as candidates, their legal teams, and supporters struggle to move into another uncharted territory of a pandemic election.

"Remember that these guidelines were not designed for convenience but for the safety of the public," Comelec spokesman James Jimenez told reporters just hours into the campaign period for Halalan 2022 national candidates. 

Under Comelec Resolution No. 10732, in-person political gatherings such as campaigning, rallies, caucuses, meetings, conventions, motorcades, caravans, and miting de avances would only be allowed if permitted by the Comelec Campaign Committee (CCC), a multi-agency "super body" in charge of regulating activities related to Halalan 2022. 

"No election campaign activity under this Guidelines shall be conducted without first obtaining the prior approval from the corresponding CCC," the resolution read.

Asked to clarify the resolution further, another Comelec official said the permit requirement also applies even for volunteer-driven activities, whether candidates are present or not. 

"The answer is yes. When we say candidates, that includes po yung supporters nila. The resolution was promulgated for the general welfare of the public, the candidates, and voters. So if we allow supporters to just hold campaigns for their candidates, then chances are malaki yung risk that the law will be circumvented," Comelec director Elaiza Sabile-David explained.

Sabile-David admitted that Resolution No. 10732 was crafted specifically to "limit 'yung conduct ng mga campaigns kaya we made the application [of permit] a requirement."

Now, prior to any political activities, candidates or their representatives, parties, or supporters must submit several documents to the CCC for evaluation.

The Partido Lakas ng Masa, led by presidential aspirant Leody De Guzman, failed to secure a permit from the Comelec for their proclamation rally Tuesday night in Quezon City.

The event pushed through with de Guzman saying their lawyers will address any potential repercussions.

On Wednesday, he said they had a problem with the local government unit’s permit which is one of the requirements needed to be attached in the application for a Comelec permit to hold an election campaign activity.

'POTENTIALLY UNCONSTITUTIONAL'

According to former acting Justice secretary and election lawyer Alberto Agra, this can be considered a red tape.

"It creates another layer of approval. Under the Omnibus Election Code, only LGU approval is needed and Election Officer notification," he told ABS-CBN News.

For Emil Marañon, another election lawyer and a former chief of staff of a Comelec chairman, said the resolution is more problematic than being a mere red tape. 

"The main problem with how Resolution No. 10732 is implemented is that prior CCC approval is being applied even to political activities by private citizens even when no actual candidates are attending," Marañon told ABS-CBN News.

Resolution No. 10732 states that private citizens cannot independently apply for CCC permit unless they present a special power of attorney from the candidate. 

"This means that by design, private citizens are already prevented by Comelec Resolution No. 10732 from engaging in independent campaign for or against a candidate," Marañon said.

The election lawyer said this “prior approval” is potentially unconstitutional.

"Comelec must be reminded that mass gathering as a means of 'public expression' relating to the election to support or campaign against a candidate is protected speech, that to subject it to 'prior approval' would be an unconstitutional prior restraint," Marañon said.

But for Jimenez, being tough is justified. 

"Just because you're willing to risk your own safety doesn't mean we have the responsibility to make it easy for you to do that."

Jimenez said supporters and volunteers are not entirely handicapped because they can campaign for their candidates through other means.

"What's important is that you can still campaign if you follow [the guideline]. Please remember, there are other ways of campaigning that are available to you that are less risky," he said.

The Philippines is set to hold its national and local elections on May 9. The campaign period for national position candidates began Tuesday, while the one for local aspirants opens March 25.

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