Supreme Court orders October polls to proceed

MANILA (UPDATE)— More than 6 months since the initial schedule of the barangay and Sangguniang Kabataan elections, the Supreme Court announced Tuesday it has declared the law postponing it unconstitutional but ordered the October 2023 polls to proceed anyway.

Republic Act 11935, signed into law by President Ferdinand Marcos, Jr. in October last year, moved the schedule of the polls from December 5, 2022 to the last Monday of October 2023, supposedly to create savings amounting to billions of pesos.

BREAKING: Supreme Court declares law postponing barangay and SK elections unconstitutional but orders the October 2023 polls to continue.

Barangay & SK officials' term to end December 31, 2022 but they stay on in a hold-over capacity until successors are elected. pic.twitter.com/doGSbR2veL

— Mike Navallo (@mikenavallo) June 27, 2023

“The Supreme Court has declared unconstitutional the law which postponed the holding of the Barangay and Sangguniang Kabataan (BSK) Elections (BSKE), from its initial schedule of December 5, 2022 to the last Monday of October 2023, but recognizes the legal practicality and necessity of proceeding with the conduct of the BSKE on the last Monday of October 2023, pursuant to the operative fact doctrine,” the high court’s Public Information Office said in a press release Tuesday night.

The operative fact doctrine recognizes the effects of a law or a legal provision before it was declared unconstitutional.

This means that while the Supreme Court voided RA 11935, its consequences, such as the holding of elections on a later date, could not be reversed or ignored.

The press briefer did not say when the Supreme Court rendered the ruling or how the voting went.

It only credited Associate Justice Antonio Kho, Jr. as the ponente or writer of the ruling, which granted the consolidated petitions.

Two petitions were filed last year challenging the constitutionality of the law — one by veteran election lawyer Romulo Macalintal and another by a group of lawyers.

• Postponement of barangay elections challenged before SC

In declaring RA 11935 unconstitutional, the high court said a “free and meaningful exercise of the right to vote, as protected and guaranteed by the Constitution, requires the holding of genuine periodic elections which must be held at intervals which are not unduly long, and which ensure that the authority of government continues to be based on the free expression of the will of electors.”

The high court also said the law violated the freedom of suffrage because it failed to show that the so-called “substantive due process” clause of the Constitution was respected.

It pointed out that there was no legitimate government interest to support the postponement of the elections and the means used by Congress were “unreasonably unnecessary” to achieve the goal and were in fact “unduly arbitrary or oppressive” of the voter’s right to vote.

The primary purpose cited in the Senate and House bills for the postponement of the elections was supposed to realign the budget of the Commission on Elections (Comelec) to projects of the Executive.

The Supreme Court said this would violate the constitutional prohibition on the transfer of appropriations while arbitrarily affecting the rights of suffrage, liberty, and expression of the people.

It went as far as describing the enactment of the law to be attended with grave abuse of discretion amounting to lack or excess of jurisdiction.

Because RA 11935 was declared unconstitutional, SC said its predecessor, RA 11462, is revived, which limits the term to December 31, 2022.

All existing barangay and SK officers are deemed to be in a "hold-over" capacity.

The Supreme Court however rejected Macalintal’s arguments that only the Comelec has the power to postpone elections on the basis of serious causes and that allowing incumbent barangay and SK officials in a “hold-over” capacity would mean they are “appointed” leaders forced upon their constituents.

Instead, it ruled that the Comelec “does not have the power to postpone elections on a nationwide basis.”

“This power lies with the Congress pursuant to (i) its plenary power to legislate, and (ii) its power to fix the term of office of barangay officials under Article X, Section 8 of the Constitution. As such, Congress did not unconstitutionally encroach on the power of the COMELEC to administer elections when it enacted Republic Act No. (RA) 11935,” the high court said.

“Neither did the provision for ‘hold-over’ capacity amount to an unconstitutional ‘legislative appointment’,” it added.

Supreme Court declares law postponing barangay and SK elections unconstitutional but orders the October 2023 polls to continue

Supreme Court declares law postponing barangay and SK elections unconstitutional but orders the October 2023 polls to continue

Supreme Court declares law postponing barangay and SK elections unconstitutional but orders the October 2023 polls to continue

Supreme Court declares law postponing barangay and SK elections unconstitutional but orders the October 2023 polls to continue

To avoid confusion, the high court made clear that the next BSKE will be held on the 1st Monday of December 2025 and every 3 years after that date.

In addition, it laid out guidelines for the postponement of elections:

1. The right of suffrage requires periodic elections. Postponement is the exception.

2. There must be sufficiently important, substantial or compelling reasons to justify postponing the elections.

3. There should be right of suffrage without unreasonable restrictions.

4. The postponement of elections must be reasonably appropriate to advance governmental reasons:

• There must be genuine reasons based on objective and reasonable criteria.
• There must be a guarantee that elections will be held at regular periodic intervals.
• The postponement is reasonably narrowly-tailored to advance government interest.

5. The postponement of elections must not violate the Constitution or existing laws.

RA 11935 is among the first laws signed by Marcos and is the first known to be rejected by the Supreme Court.