SC sets discussions on petition against BSKE resked

The Supreme Court (SC) has set the oral arguments on the petition assailing the constitutionality of the law postponing the Barangay and Sangguniang Kabataan Elections (BSKE) on Friday, October 21.

In a media briefer, the SC will hold the oral arguments at 3 p.m. on the petition filed by veteran election lawyer Romulo Macalintal who urged the SC to order the Commission on Elections (Comelec) and the Office of the President to cease and desist from implementing Republic Act 11935.

The law moved the BSKE from December 2022 to October 2023. The SC also required Comelec and the Office of the President to file their comment not later than 12 p.m. on Friday.

Macalintal earlier asked the SC to declare as unconstitutional Republic Act 11935 postponing the holding of barangay elections until next year.

In a petition for certiorari, Macalintal asked the SC to declare as unconstitutional RA 11935 which President Ferdinand Marcos Jr. signed into law last week. RA 11935 postpones the holding of barangay and Sangguniang Kabataan elections from December this year to October 2023.

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.  But Macalintal asserted 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 a scheduled barangay elections, 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,” he added. Rey E. Requejo

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.

At the same time, 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 under RA 11935 upon the expiration of their term on 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.

The poll lawyer stressed this is against the 1987 Constitution which provides that barangay officials must be elected into office, not appointed.

“Postponement of election is a subtle way to lengthen governance without the mandate of the people,” he said. Macalintal also cited the billions in taxpayers’ money spent by the poll body in preparing for the holding of the elections in December.

With this, Macalintal asked the SC to issue an injunction against the implementation of the said law. However, Macalintal said he is not challenging the postponement of the SK elections which is also deferred until October next year since it was created only by a law passed by Congress that it can amend or change anytime, and not in the Constitution.

Named as respondents in the petition are the Comelec and Executive Secretary Lucas Bersamin.