The Supreme Court has been asked to declare as unconstitutional Republic Act No. 11935 postponing the holding of barangay and Sangguniang Kabataan elections (BSKE) from December this year to October 2023.
In a petition for certiorari, election lawyer Romulo Macalintal asked the High Court to declare as unconstitutional the measure that President Ferdinand Marcos Jr. signed into law last week.
Macalintal’s petition, however, did not include the SK elections.
With the passage and signing of RA 11935, all incumbent barangay and SK officials must serve until their successors are elected next year or they can be removed or suspended earlier for a cause.
Subsequent barangay and SK elections will be held every three years.
However, Macalintal argued that Congress has no power to postpone the holding of barangay elections and to extend the term of current officials.
“The Constitution gives Congress the power to determine or fix the term of office of barangay officials. Clearly, the Constitution does not give Congress the power to postpone the barangay elections nor to extend the term of office of barangay officials,” Macalintal said.
According to him, the power to postpone elections lies with the Commission on Elections after determining “serious causes” under Section 5 of the Omnibus Election Code (OEC).
If Congress is empowered to postpone the holding of elections, it would remove the authority of the poll body under the OEC, Macalintal said.
“Thus, by enacting a law postponing the scheduled barangay elections, Congress is in effect executing the said provision of the OEC or has overstepped its constitutional boundaries and assumed a function that is reserved to Comelec,” he said.
“It is clear that the poll body has the sole power to postpone the elections based on reasons under Section 5 of the Omnibus Election Code,” Macalintal added.
He said postponing the conduct of barangay elections would also violate the constitutional right of the people to due process since they are effectively “forced to accept” the appointed officials upon the expiration of their term in December 2022, without hearing or notice.
“Due to this, the officials will no longer be ‘representatives of the people’ and will become ‘representatives of Congress,’” he said.
“Postponement of election is a subtle way to lengthen governance without the mandate of the people,” he said.
However, Senators Imee Marcos and Jinggoy Estrada said the 1987 Constitution authorizes Congress to set the date for the barangay and SK polls.
“Not knowing anything about the case and working merely on general knowledge, it is the Constitution that vests in Congress the power to determine the terms of barangay officials. Necessarily, it is Congress which can determine when barangay and SK elections shall be held,” said Marcos, chairperson of the Senate Electoral Reforms and People’s Participation.
“Congress is vested by the Constitution with legislative power and we exercised such authority when we moved to defer the holding of the poll exercise this year. Such authority to postpone the barangay elections as well as the Sangguniang Kabataan elections has in fact been exercised thrice in the past prior to the enactment of RA 11935,” Estrada said.
