VETERAN election lawyer Romulo Macalintal on Tuesday questioned the constitutionality of the plan of Congress to postpone the conduct of barangay elections.
In a statement, Macalintal noted that the Supreme Court ruled in 1997 in David vs Commission on Elections (Comelec) that elected leaders can only “legally and morally justify their reign” by obtaining the consent of the electorate.
“Thus, if our barangay officials want to continue serving, they must get a new mandate in the elections scheduled on October 31. Otherwise, their extension will result to unlawful governance as the same is clearly without the mandate and voluntary consent of the electorate,” Macalintal said.
Likewise, Macalintal said the 1987 Constitution only empowers Congress to fix or determine the “term of office” of these barangay officials, but not their “tenure of office.”
“To postpone the scheduled 2016 barangay election, will not cause an extension of the ‘term’ of office of the barangay officials elected in 2013, but an extension of their tenure of office or the actual period of their stay in the office. And Congress has no power to extend the tenure of office of these officials since it had already fixed their term of office for three years,” the election lawyer added.
On the issue that President Duterte would not be able to fill up government posts because of the ban during the election period, Macalintal said the law has provided for exemptions.
“While the election laws prohibit movement or appointment of government officials during an election period, said laws allow exemption upon prior authority from the Comelec,” he pointed out.
Macalintal also said “election fever” cannot be raised as a valid ground for the postponement of the process considering that barangay and Sangguniang Kabataan (SK) elections were also conducted in 2007, 2010 and 2013 without the Comelec asking for postponement.
“For sure, when the barangay election law was deliberated upon by Congress, it consulted the Comelec as to the scheduled barangay elections and they were fully aware of the proximity in time of said elections to a regular national election. And yet, they agreed to these dates and the law was passed accordingly,” Macalintal noted.
Duterte has backed moves in Congress to postpone the Barangay and SK elections, prompting the Comelec to suspend the printing of ballots until September 1.
The Comelec is anticipating that Congress would pass pending bills calling for the postponement of the said elections.
Senate President Aquilino A. Pimentel III and Speaker Pantaleon D. Alvarez have also approved the proposal to push back the scheduled electoral exercise.
However, Macalintal finds no legal issue with regard to the postponement of the SK elections, like in 201 since it is “within the power of Congress to legislate” considering that SK election is not provided for in the Constitution.
It can be recalled that then President Benigno S. Aquino III had signed the law postponing the SK elections scheduled for October 2013 in order to give way to initiating reforms as evident in the SK Reform Act of 2015.