The Supreme Court (SC) was asked on Monday, Oct. 17, to declare unconstitutional Republic Act No. 11935 that mandated the postponement of the Barangay and Sangguniang Kabataan Elections (BSKE) from Dec. 5, 2022 to Oct. 30, 2023.
In a petition filed by election lawyer Romulo B. Macalintal, the SC was told that the power to postpone elections is within the exclusive jurisdiction of the Commission on Elections (Comelec).
It was not known immediately if the SC would be able to tackle Macalintal’s petition during the High Court’s regular full court session on Tuesday, Oct. 18.
A copy of the petition was not available as of posting. But Macalintal issued a summary of his petition.
Macalintal pointed out that while the Constitution gives Congress the power to determine or fix the term of office of barangay officials, “the Constitution does not give Congress the power to postpone the barangay elections nor to extend the term of office of the barangay officials.”
On the postponement of elections, Macalintal cited Section 5 of Batas Pambansa Blg. 881, the Omnibus Election Code of the Philippines.
He said that Section 5 provides: “When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission (Comelec), motu proprio (on its own initiative) or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect.”
Under RA 11935 which was signed into law by President Ferdinand “Bongbong” Marcos Jr. last Oct. 10, the BSKE will be held on the last Monday of October 2023 or on Oct. 30, 2023.
The law provides that all incumbent barangay and SK (Sangguniang Kabataan) officials will remain in office until their successors are elected and qualified or unless they are sooner removed or suspended.
Barangay and SK officials, who are ex-officio members of the Sangguniang Bayan, Sangguniang Panlungsod, or Sangguniang Panlalawigan will continue to serve until the next BSKE, unless removed under existing rules, the new law also stated.
Specifically, Macalintal said that RA 11935 is unconstitutional because of the postponement and the extension of office of barangay officials.
“In a word, what the Constitution prohibits, the questioned law permits. Here what Congress cannot do directly, it is doing indirectly,” he said.
Macalintal stressed that barangay officials are elected and not appointed.
“If they stay in power, these holdovers cannot be considered as ‘representatives’ of the people in their respective barangays but representatives of Congress to whom these barangay officials owe their holdover positions,” he said.
Thus, he said, RA 11935 “violates the electorate’s right to due process as they are forced to accept these appointed barangay leaders, whether they like them or not, upon the expiration of the term of office of these officials, without notice and hearing.”
He also said that “postponing the Dec. 5, 2022 barangay election is a subtle way ‘to lengthen governance without the mandate from the governed.”
“Comelec had already prepared for the Dec. 5, 2022 barangay election and expressed its readiness to conduct the same. For sure, billions of pesos had already been spent by the Comelec and these will go to waste if the said election is postponed,” he stressed in his petition.
He pleaded the SC to compel the Comelec to continue with its preparations and to order the holding of the BSKE as scheduled on Dec. 5, 2022.
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