Lawyer says Congress has no power to postpone polls
VETERAN election lawyer Romulo Macalintal yesterday challenged before the Supreme Court (SC) the legality of deferring the conduct of the barangay elections under Republic Act 11935, or the law postponing the Barangay and Sangguniang Kabataan Elections (BSKE) to October next year.
Macalintal filed a petition for certiorari and asked the high court to declare the newly signed law as unconstitutional on the ground that Congress has no power to postpone the holding of barangay polls and to extend the terms of current officials.
The election lawyer’s petition questioned only the constitutionality of deferring the barangay elections and not the legality of moving the holding of the SK elections, which was also postponed under the new law, to next year.
Macalintal said the SK polls is not provided for in the Constitution and was created only by law passed by Congress, and thus, can be amended or changed anytime by lawmakers.
The BSKE was originally set to be held on December 5 this year, but lawmakers postponed its conduct to the last Monday of October 2023. President Marcos signed RA 11935 last week.
This is already the second straight postponement of the BSKE as it was originally set to be held in May 2020 but was moved to December 2022. Likewise, prior to the 2018 BSKE, it was also postponed twice, with the original schedule in 2016 being moved to 2017, and again to 2018.
Aside from postponing the BSKE, the law likewise extended the terms of all incumbent barangay and SK officials until their successors are elected next year, and unless they are removed or suspended earlier for a cause.
Subsequent barangay and SK elections will be held every three years.
Macalintal said: “The Constitution gives Congress the power to determine or fix the term of office of barangay officials. (But) Clearly, the Constitution does not give Congress the power to postpone the barangay elections nor to extend the term of office of barangay officials.”
He said the power to postpone elections lies with the Commission on Elections (Comelec) after determining “serious causes” under Section 5 of the Omnibus Election Code (OEC).
If Congress is empowered to postpone the holding of elections, Macalintal argued, it would remove the authority of the poll body under the OEC.
“Thus, by enacting a law postponing a scheduled barangay election, Congress is in effect executing said provision of the OEC or has overstepped its constitutional boundaries and assumed a function that is reserved to Comelec,” Macalintal 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,” he stressed.
Macalintal also said postponing the conduct of barangay elections would violate the constitutional right of the people to due process since they are effectively “forced to accept” the appointed officials under RA 11935 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, which he said is against the 1987 Constitution which provides that barangay officials must be elected, not appointed.
“Postponement of election is a subtle way to lengthen governance without the mandate of the people,” he added.
Macalintal also cited the billions in taxpayers’ money spent by the poll body in preparing for the holding of the elections in December.
‘WELCOME’
The Comelec welcomed Macalintal’s move, saying it will be a chance to settle “once-and-for-all” the frequent resetting of the said poll exercise.
Comelec spokesperson John Rex Laudiangco, in a statement, said: “We welcome the filing of the said petition, wherein the Supreme Court will be once again given the opportunity to enrich jurisprudence and once-and-for-all settle the lingering question on the powers of the legislative and executive departments of the government in so far as the issue of fixing the terms of Barangay and SK officials, and, in doing so, the power to postpone and re-schedule the elections for such.”
He said that the poll body is ready to comply with whatever will be the ruling of the high court.
“If and when the time comes that a definite ruling on this issue is handed down by the Supreme Court, the Comelec is ever ready and duty-bound to comply,” said Laudiangco.
Sen. Jose “Jinggoy” Estrada, one of the proponents of the BSKE postponement, said: “I will defer to the wisdom of our justices.”
“I am confident that the Supreme Court will immediately act on the petition. I will not argue with the merits of the case or the lack of it… But as one of the proponents of the law postponing this year’s barangay elections, this much I can say: 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.
He said the petition questioning the constitutionality of the postponement of the barangay and SK elections is proof that democracy is alive in the country.
Sen. Imee Marcos, sponsor of the measure, while saying that she has yet read to read the petition, said: “It is the Constitution that vests in Congress the power to determine the terms of barangay officials… Thus, it is Congress which can determine when (the) barangay and SK elections shall be held.”
Sen. Francis Escudero said anyone has the right to question “any law passed by Congress before the SC on constitutional grounds.”
“Don’t want to comment as I haven’t read it… But suffice it to say that the SC has had occasion to rule on a similar issue re constitutionality of a law on B and &SK (barangay and Sangguniang Kabataan election) postponement and ruled in favor of its constitutionality,” Escudero said.
COMELEC BUDGET
In a related development, Marcos yesterday suspended deliberations by the Senate finance committee on the proposed 2023 Comelec budget.
Marcos, who is one of the heads of the Senate finance sub-committee panels, said that while the Comelec wanted extra funding for the delayed polls, its officials still could not provide documents which would breakdown of expenses for the barangay and SK election next year, among others.
Elections chairperson George Garcia has requested for an additional P10 billion to the proposed P8 billion allocation for the conduct of the BSKE on December this year, or a total of P18 billion for the polls to be held on October 2023.
The Comelec leadership has repeatedly been asked in previous hearings to submit documents to justify its fund request.
Documents that the Comelec has been asked to submit include, among others, the breakdown of funding for the barangay and SK elections and the projected increase of P10 billion for the said elections, the persistently low voter turnout among overseas Filipino workers, the status of election workers’ compensation, Smartmatic’s continuing “strange hold” on the country’s election system, accounting of the poll body’s P88 billion trust fund, and proposed solutions to address the reported vote buying during the May elections.
“I was alarmed by the failure of the Comelec to produce the required information. I haven’t received the budget for the barangay and SK elections for October 2023, payment of workers, also regarding OFWs and certain issues that I requested,” Marcos said.
“Nothing has been submitted except the old power point (presentation) that is irresponsive to the inquiries of my colleagues,” she said before suspending the hearing, stressing that she cannot endorse and defend the Comelec’s proposed budget for plenary discussions sans the requested documents.
She added: “Kung hindi sila magsa-submit wala tayo choice kundi ipa-postpone na lang hanggang November (If the Comelec will not submit [documents] we have no choice but to postpone the hearing until [regular sessions resume on] November).”
When asked for the reason why Garcia failed to submit the details, Marcos said: “Wala lang. I will submit it this afternoon. Sabi ko naka-ilang deadline na kayo (He said nothing.
He just said that he will submit them this afternoon. But I told him that we have already given them so many deadlines).”
Marcos said she even talked with Comelec officials last Saturday and reminded them to prepare the documents papers.
Senate minority leader Aquilino Pimentel III said Comelec should be prepared “not only in figures and amounts” but also with other issues related to its mandate and operations when attending Senate hearings.
“Bakit walang submission (Why were there no submissions)? All agencies are expected to be prepared not only in figures and amounts but also on issues related to your operations and mandate,” Pimentel said.
Garcia replied: “There were preparations, but certain officials failed to prepare a summary.
We are prepared to (answer) the questions, queries of the Senate minority leader.”
Pimentel said submitting documents is better than answering questions during the hearing since senators can scrutinize the documents submitted against the answers of resource persons.
Marcos said the additional budget being asked by the Comelec is not suited to the present time, especially since everyone is experiencing difficulties due to the pandemic, and the effects of recent calamities, among others.
“Pinagpipilitan na kailangan pa rin nila ng P10 billion… Parang hindi angkop lalo na sa panahon ngayon na hirap ang lahat (They insist that they need the additional P10 billion…
It is not suited in the present time since everyone is experiencing hardship),” she said. — With Gerard Naval and Raymond Africa
