Interview with Atty. Barry Gutierrez
ANC Dateline Philippines
KARMINA CONSTANTINO: Spokesperson of the Vice President, Atty. Barry Gutierrez. Atty. Gutierrez nice to see you again, thanks for joining us today.
BARRY GUTIERREZ: Happy to be here Karmina.
KARMINA CONSTANTINO: Alright. Before we talk about that, I want to talk about what the COMELEC has just said. The COMELEC insisting that what they’re doing is legal, that it’s all about regulation, it’s all about leveling the playing field, your thoughts Atty. Gutierrez?
BARRY GUTIERREZ: Well first of all, if the COMELEC is insisting on actually pursuing this course of action, we challenge them to actually point to the provision of law which grants them the authority to actually enter private properties and remove materials put up by private persons. Because it’s very clear, the law allows them to regulate election propaganda if these are produced by political parties and by candidates. And it’s also clear that our several Supreme Court decisions, including the very often-cited Diocese of Bacolod, which actually makes clear that if it’s a private person, a private entity that puts this up on private property, then this is covered by the constitutional guarantee of free speech and is beyond the scope of COMELEC regulations.
So, I do not know where they are getting their legal basis for proceeding here, and it’s clear that the activities of the COMELEC the past few days, backed-up by elements of the Philippine National Police and the AFP in entering private properties and removing these materials.
Yesterday we saw an incident in Isabela where a mural painted on a private wall [inaudible 1:33] painted over. So, that’s really the– that’s really the problem here. They are clearly overstepping their bounds, this is not just a case of abusive enforcement anymore, it’s actually borderline harassment of supporters of candidates.
KARMINA CONSTANTINO: And you heard about what Director James Jimenez said as well, Atty. Gutierrez that when you follow their line of thinking, he’s basically saying whose to prevent an owner, a rich owner of a building from just making the whole building a propaganda material by covering that with posters. I mean, if you follow that line of thinking, then why don’t they go after those rich people and not go after the volunteers? But painstakingly– and not just talking about your supporters, because all HQs here– supporters who have been really showing their support for all candidates. Go ahead.
BARRY GUTIERREZ: Yes, exactly. The point is, there is always a possibility of abuse. But you know in checking abuse, you can not go beyond what the law provides after all. They can’t just invent a regulation out of thin air when no law actually authorizes them to actually do so. And if— to be clear if they can actually establish that a particular person is acting at the behest of a campaign, a candidate, or a political party, then that falls within their scope. But in none of the takedowns starting yesterday and even earlier have they even made an allegation that these people who are putting up these posters on their own property are somehow working for, or were actually compelled by any campaign, or any candidate, and that’s really the issue. And I think that also brings to light the other problem here: they are all doing this summarily. Even under the COMELEC resolution, there has to be a three-day notice. There has to be a notice sent by the COMELEC, and there’s an opportunity to respond. But here, there’s no such procedure being followed. The COMELEC officers come there, they are accompanied by armed men, and then they enter the properties and take down what they deemed to be illegal campaign materials. Which is all highly irregular, and in our view, violative of constitutionally protected freedoms.
KARMINA CONSTANTINO: But Atty. Gutierrez, they do have that mandate to regulate on level of playing field, so how best do you think they’ll– they should be able to perform that mandate, without taking down campaign materials? Go ahead.
BARRY GUTIERREZ: It’s true that they have that mandate but that mandate is exercised in accordance with the powers that the law provides them. And it’s clear, as I said, they cannot even point to any law which says that they’re authorized to regulate speech done by non-candidates and non-political parties in an election. And the Supreme Court has been very consistent in so far as that particular issue is concerned. So, if they see that there is a gap here, they feel that “O, puwedeng abushin ito. Di ba kasi ‘yung mga kandidato magbabayad ng mga tao tapos papalabasin na ‘yung mga taong iyon ang nagpalabas,” then you know, they should go to Congress and ask for an ammendment to the law to expand the powers they currently have or they can simply issue notices to these people, asking them to appear and prove that they are doing this not at the behest of a political party or a candidate [inaudible 05:06 to 05:08] actually of their own accord. But the point is, that has to be established. It can’t be something that the COMELEC simply thinks up and then tries to justify on a very very broad basis that well “We’re empowered to regulate elections.” That’s not true, you have to regulate elections in accordance with clearly established rules and in accordance with the powers that laws passed by Congress give to you as a constitutional body.
KARMINA CONSTANTINO: And as it is, several steps were missed Attorney Gutierrez– oh we’re now talking about threats. There have been supporters who have been posting on social media about threats made against them if they don’t take down those posters. Instead of issuing them notices, they were issued threats. Your thoughts on that?
BARRY GUTIERREZ: Well, exactly the problem when it comes to trying to enforce this heavy-handedly without issuance of prior notice and without observance of due process to begin with. If a group of people, and they claim to be representing the COMELEC, and they are accompanied by armed men insist that they are going to enter your property and take it down, well even in our advisories to the volunteers who come to us, we advise them not to resist because the possibility that they would actually be subjected to violence at that point, far outweighs what we think is, you know, an acceptable risk to their person. So, we advise the volunteers to raise the objection, to document the proceedings, to get the I.D. and the name of the person enforcing this policy of the COMELEC, but at the end of the day to cooperate because you don’t want this to escalate. But again, this is on the COMELEC. They have to follow their own procedures, they have to provide a venue by which this can be actually discussed in a more reasonable, a calm and non-confrontational fashion, and not simply barge into people’s homes accompanied by armed men and do the takedown physically.
KARMINA CONSTANTINO: Atty. Gutierrez since this whole incident, several of these incidents blew up. Up to today, have you still been getting reports, are you still getting reports of supporters and their face-off with COMELEC officials who do wish to take down campaign materials in their private properties?
BARRY GUTIERREZ: We are still getting reports both directly passed on to our campaign headquarters and, you know, monitored on social media up to yesterday afternoon. And remember, yesterday morning I already had a press conference with Atty. Romy Macalintal who already stated the very very clear position that this is Constitutionally protected speech that should be honored by the Commission on Elections, and calling on the COMELEC to try and re-think the policy they are currently pursuing. And yet despite that, we have the situation that yesterday we had a mural being painted over which, to my mind, really is far more extreme than just a takedown. Here, you’re spending resources to actually paint over something which is there. This is no longer a campaign poster. It’s not a— it’s clearly not a poster, it’s a mural, a painting, an artwork and covered by the Constitutionally protected freedom of expression. So I can not understand where COMELEC is getting its idea that even that should be subject to painting over— and it’s not just regulation, it’s really supression at this point in time.
KARMINA CONSTANTINO: I suppose you have conducted your own investigation Atty. Gutierrez, that you are not just taking this sitting down, that you’re also trying to find out what really is happening. Does it stop with the COMELEC, or does it go even beyond that?
BARRY GUTIERREZ: Well right now we’re looking into it but the main point of prioritization has to be what do we do to prevent this from continuing. Because supporters, volunteers, ordinary citizens are being harassed. You know, they do not even feel safe in their own homes, expressing their ideas and their opinions about a very very important political exercise which involves them as citizens and as voters. So, we’re in discussions of the possibility of filing cases, probably with the Supreme Court, probably criminal cases at the local level, but definitely this is something that we expect will happen soon within the next few days, and there is no shortage of lawyers who have actually come forward to express interest in supporting the specific volunteers that have been affected by this COMELEC policy, whose property has been taken down, and whose homes have been invaded, to assert their rights and set this straight.
But as to whether this goes beyond the COMELEC, well right now we still take everything in good faith. We assume that these are public officers who think they are well within the bounds of performance of their duties. So, we are addressing it in the legal fora to once and for all settle what are the limits of COMELEC authority in so far this particular issue is concerned.
KARMINA CONSTANTINO: Listening to your press conference yesterday with Atty. Romy Mac, he did mention that this may even be a class suit. But are you going to take the lead? Is it going to be the HQ of Vice President Leni Robredo taking the lead in this class suit?
BARRY GUTIERREZ: Well, again, that's something that we are discussing. The campaign itself is willing to take it on. But we think that since this is, as you've mentioned earlier, an issue which touches across the different campaigns and the different candidates. Because after all, it is not just the supporters of VP Leni who stand to be affected by these, although over the past few days we sometimes can’t help but feel that we are being– or our supporters, at least are being– singled out. There have been pictures sent to me, and that I have seen on social media of campaign paraphernalia belonging to other campaigns that clearly have not been taken down, although they are in public places and clearly exceed the measurements allowed under the– under the Fair Election Act and other applicable laws.
But you know that aside, we think that this is an issue that cuts across all campaigns. If there are other campaigns willing to join us here then maybe we will go that way but otherwise, the lawyers that have come forward seem willing to support individuals who have had their rights directly violated. Because after all, and Atty. Macalintal pointed this out yesterday, standing is a requisite in bringing any of these cases. And the clear standing belongs to the ordinary Filipino citizen who has had his or her rights violated when COMELEC officers, accompanied by law enforcers have, you know, forced their way into their homes and taken down what is, you know, clearly their private property.
KARMINA CONSTANTINO: Atty. Gutierrez, as much as this is a legitimate issue, it can also prove to be a distraction for the campaign. How are you in a campaign around this and not be, you know, distracted by these incidents? What are your matching orders as well to your supporters regarding this incident, and carrying on with the campaigns.
BARRY GUTIERREZ: Well- [inaudible 12:39 - 12:45] and once they take it on, they will be taking the lead insofar as getting a court pronouncement on what really are the parameters with regard to this issue: what are the powers of the COMELEC, what is the area of the constitutional protection here, and how do those two actually come together. But that said, I think the biggest concern for supporters is really peace of mind. How can they continue to campaign if they will be harassed in this way? If even in their own homes, there is no guarantee that people backed up by armed men will not barge in and take down the posters that they have spent for, and they have put up on their own property.
But you know, the assurance from the campaign yesterday as to the clarity of what the constitutionally protected right here is, along with the [audio cut 13:37] has stiffened their spine, it has put them in a fighting move. In fact they’re using this, the campaign is using this and the volunteers are using this as an opportunity to actually become more creative. So instead of just having a poster with a picture of VP Leni saying Leni Robredo for President, there might be more creative expressions which do perform the same objective of introducing her to the public, of showing her support, but clearly are more individual artistic expressions of the opinion and advocacies of the individual person putting it up. So, it’s become an opportunity to actually introduce a greater level of creativity and engagement and buy-in to the campaign. And ultimately I think this will be something that strengthens the volunteers’ movement and the volunteers’ initiative, the People’s Campaign in general, rather than serving as a distraction.
KARMINA CONSTANTINO: Talking about buying into the campaign, Atty. Gutierrez, some people– some concerned citizens actually have expressed their concern about the continuing services that the Office of the Vice President is giving to people. And the concern is, that as you continue on with that, this may be seen as services being rendered in exchange for votes. What is your reaction to that?
BARRY GUTIERREZ: Well first of all, since the start of the official campaign period, the Office of the Vice President has actually put on hold all the traditional assistance that it has been giving to people. So, we have been apologizing to the thousands that have still come to approach the OVP expecting assistance, and explaining that, you know, because of the campaign period, we have been constrained to actually put on hold all these services.
There is a pending request by the OVP, submitted to the COMELEC for decision, to allow us to continue at least the services related to COVID response, and if the COMELEC grants us, then that is a clear exception that we will be able to provide. But whatever the COMELEC decides we will abide. And obviously, right now without the benefit of a clear exception, every service has been put on hold. It’s really out of respect for our laws and our rules, and as you said, we don’t want to be perceived as taking advantage of this in order to support anybody’s electoral bid. But definitely it’s something that we have been informing everybody that we will no longer be able to provide because of the regulations governing disbursements during elections.
KARMINA CONSTANTINO: Atty. Gutierrez, as campaign materials are being taken down the number of supporters of the VP, that continues to go up, I just read an item there, in a matter of minutes we are going to have a report from our correspondent giving us details about the more than 200 former officers and retirees of the UN and its attached agencies, pledging their support for the Vice President’s presidential bid. How beneficial will this be for the campaign and how much of an impact will this have on the campaign, Atty. Gutierrez?
BARRY GUTIERREZ: Well again, you know, as I’ve said many many times before, campaigns are about addition, and any group that comes forward to support the Vice President is obviously welcome, and will be a boost to her electoral bid.
But that said, particular groups coming out– you have these former UN officials; before in previous days, we had over a hundred and sixty economists coming out; before that, members of cabinets of previous administration coming to endorse the Vice President; beyond the actual numbers that they represent, beyond the networks that they can actually bring to the table, it’s really the idea that people who have had experience in governance, people who have had a direct line to what it takes, to be president, to be leader of a county, to run a county with all its challenges, are putting their confidence and expressing their confidence in VP Leni. And that is a huge thing. It tells the vast majority of our people that competent people, people with experience, think that the VP is competent and that she has what it takes to be president and that’s no small thing. And that supports the message that we have been sending out since the start: that her track record, that her approach to governance, that her completely clean record, are all things that should be very heavily considered in supporting her and choosing her as our next president.
KARMINA CONSTANTINO: But Atty. Gutierrez, when you look at the growth of her numbers in pre-election surveys, when you average that out, it’s only about 1% per month. How do you think those numbers will get through even close to victory come May 9?
BARRY GUTIERREZ: Well let’s be clear as to when this surveys were actually done. They were done in early January, they missed some of the big media events, the big media interviews and debates that came in the latter part of January up to the first part of February, they missed the launch of the official campaign and since the start, Tuesday last week, the Vice President has really been on a roll insofar as campaign rallies are concerned. There was a huge crowd in her home province, and in the neighboring provinces in Bicol, huge crowds greeted her the past few days when she went around Panay, Antique, Aklan, and Capiz, huge crowds met her in Central Luzon and Southern Tagalog when she went there last week. And in Quezon City last Sunday, Pink Sunday, there was really a tremendous amount of energy from again another huge crowd which met her there.
So I think that while– well I’m not disputing the accuracy of the surveys– they were done at a point when none of these things have happened yet. Insofar, as her numbers, pre-October 7, the date of declaration, and her most recent numbers are concerned, there was a clear spike upwards, if you look at Pulse Asia, it is an almost 10% increase. And we are confident that with the– with the renewed energy that greeted the start of the campaign period, and her undeniably game-changing performance in the debates and the interviews in the weeks past, she will start seeing better numbers by the next survey period, and this will continue to go up in time for a victory on election day.
KARMINA CONSTANTINO: Final quick question there, when you said that they missed all these milestones on the campaign trail, are you saying that they missed it on purpose, that they did that on purpose?
BARRY GUTIERREZ: Oh no. These are– the field work is scheduled, so it just so happened that the fieldwork was scheduled for a period where, you know, these events have not yet happened. So that is why I'm confident that come the next survey period, these important events, these milestones, as you put it, will already be captured and will be reflected in the results of these coming surveys.
KARMINA CONSTANTINO: Atty. Barry Gutierrez, the spokesperson of Vice President Leni Robredo, always a pleasure talking to you. Thanks and keep safe.
BARRY GUTIERREZ: Keep safe yourself Carmina, and thank you.
CARMINA: Thanks a lot.