2022 PH Elections - Voices

[EXPLAINER] How pandemic campaign rules are open to abuse, sow confusion

Emil Marañon III

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[EXPLAINER] How pandemic campaign rules are open to abuse, sow confusion
Comelec’s Resolution 10732 is silent on a number of practical concerns during a campaign, thus allowing ground personnel to adopt varying interpretations that are cumbersome, confusing, unreasonable, even unconstitutional

The campaign period for national candidates that starts on Tuesday, February 8, 2022 – in fact, even the local campaigns starting on March 25 – will be different from past elections. Physical campaigning would now require the prior approval of campaign committees at the Commission on Elections under Comelec Resolution No. 10732. 

This requirement for permission is supposedly to ensure that minimum public health standards are observed in campaign activities. With the COVID-19 pandemic still raging, the Comelec says it wants to prevent campaign activities from becoming super spreader events. This means that, unlike in past elections, candidates now cannot just go around, hold rallies, and do motorcades without the approval of the Comelec Campaign Committee or CCC either at the local or national level. 

Comelec Resolution 10732 is unfortunately silent on the effect of non-compliance with the CCC requirement. However, based on conversations with the poll body’s ground personnel during various CCC briefings, their understanding or even consensus is that if campaign activities don’t comply with this requirement, the committee can have them dispersed and the organizers and participants arrested.

They seem to have forgotten that Section 266 of the Omnibus Election Code expressly prohibits, and even criminalizes, arrests in connection with the election campaign. This is a scary prospect given that the rules are new, largely unknown, and hard to comply with.

How election campaigns will be conducted in 2022
In-person campaign activities allowed by Comelec for 2022 polls

Now, there are CCCs at the national, regional, provincial and municipal levels. Each of these CCCs is headed by the Comelec, with representatives of the Department of Health, the Department of the Interior and Local Government, the Philippin National Police, and the Armed Forces of the Philippines as members. 

To apply for permits, a candidate must fill up Annex A of Comelec Resolution No. 10732 and submit it to the poll body at least 72 hours before the activity. If the CCC doesn’t act on it within 48 hours, the application shall be deemed approved. If the application is disapproved, there is an appeal process that can be filed with the next higher level of the CCC hierarchy. Then, after an approved event is held, the candidate also needs to submit a notarized Annex B or the so-called “Affidavit of Compliance.”

Don’t be fooled into thinking that this seems easy. I have prepared these applications myself on behalf of my clients, and it can be tedious. If a candidate intends to campaign daily, this means that applications and compliances must be submitted on a daily basis. 

In addition, I can already foresee future complications, especially when the campaign period for local candidates begins on March 25. 

First, Comelec Resolution No. 10732 is silent on the manner of filing. Should it be done physically at the Comelec office concerned, or can it be done by email? This lack of specific guideline has resulted in some local offices allowing filing by e-mail and others insisting on physical filing. Common sense would have dictated that, since this requirement for permits is a pandemic-related protocol, contactless electronic filing would have been expressly mandated. It would have been practicable to avoid confusion among both the public and the Comelec’s own personnel.

Second, this policy can possibly be weaponized by incumbent elected officials to restrict or even prevent the campaign activities of their challengers by simply complicating the local government units’ permit processing or by simply denying their application. Take note that, in the case of outdoor rallies, miting de avance, motorcades, and caravans, the Comelec requires that an LGU permit be attached to the application with the CCC. 

But how about campaign activities in private properties and “freedom parks,” which, under Batas Pambansa 880 or The Public Assembly Act of 1985, supposedly do not require an LGU permit? The Comelec resolution is also silent on this. 

Third, if rallies, caucuses, meetings, and conventions are to be held indoors, the candidate is required to submit proof of reservation and the Department of Tourism’s accreditation of the venue. 

Again, what if the activity is to be held in a non-hotel setting or in a private property, what will be attached to the application? The Comelec resolution is silent.

Fourth, there seems to be confusion regarding the coverage of Comelec Resolution 10732. There are persistent reports of Comelec offices and local authorities insisting on CCC approval for events held independently by private citizens even when no candidates are attending – think volunteers campaigning or doing information drives. Yet, private citizens are not allowed to independently apply for CCC approval – they have to present a special power of attorney from a 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. 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 part of the Constitution’s free speech guarantees. To require them  to get “prior approval” would be unconstitutional since it’s a form of prior restraint. 

Fifth, there is the ambitious ban on crowding, handshakes, and any form of physical contact – even selfies – between the candidate and members of the public. How will these prohibitions translate given the realities on the ground? A supporter is already prohibited from shaking the hands of their candidate, can’t they have at least a selfie?

The Comelec should review and improve Resolution 10732. It must fill in missing details and clarify gray areas to leave no room for boundless discretion by those implementing the resolution on the ground. While I understand the rationale of having regulations, especially during a pandemic, these should be reasonable and must be within the bounds of the law and the Constitution. There should be safeguards against possible abuses and discrimination against certain candidates and more so private citizens who are merely exercising their rights. – Rappler.com

Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo. Marañon served in Comelec as chief of staff of the late chairman Sixto Brillantes Jr. He graduated from the SOAS, University of London, where he studied Human Rights, Conflict, and Justice as a Chevening scholar. He is a partner at Trojillo Ansaldo and Marañon (TAM) Law Offices.

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Emil Marañon III

Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo.