SC prioritizes public interest cases

As the New Year dawned, CJ Alexander G. Gesmundo announced that the Supreme Court would prioritize public interest cases, among them, (1) Romulo Macalintal’s petition to invalidate Republic Act No. 11935, a law that postponed the “Barangay and Sangguniang Kabataan Elections” (BSKE) from Dec. 5, 2022, to the last Monday of October 2023, and (2) the petition of “KAPIT” to invalidate the “No Physical Contact Apprehension Policy” in Metro Manila. Coming to my mind additionally are (3) CJ Gesmundo’s off-the-cuff comment that the P203-billion Marcos Estate Tax could be reopened, and (4) Senior Associate Justice Marvic M.V.F. Leonen’s proposal for a “writ of kalayaan.”

MACALINTAL ATTACKED THE CONSTITUTIONALITY OF RA 11935 because it allegedly usurped the constitutional power of the Commission on Elections (Comelec) to postpone elections. Moreover, according to Macalintal, the law unconstitutionally extended “the term of office of barangay officials disguised as postponement of the barangay elections. There is even a clear violation of the constitutional provision that a bill should only embrace one subject that must be expressed in the title thereof. It is as clear as the sunlight that RA 11935 has three (3) subjects: postponement of barangay election, extension of term of office of barangay officials; and hold over positions for incumbent barangay officials.”

Unquestionably, the BSKE was not held last December. Nonetheless, Comelec chair George Garcia explained that the Commission is prepared to hold the BSKE in May 2023, instead of the last Monday of October 2023, if the Court would grant the Macalintal petition before the end of this month.

In view of this explanation, Macalintal filed two “extremely urgent” motions asking the Court to issue a “Temporary Restraining Order [TRO] and/or Status Quo Ante [SQA] Order” directing the Comelec “to cease and desist from implementing RA 11935 … and to immediately resume its … preparations to hold the [BSKE] in May 2023,” instead of in October 2023.

OPPOSING PASSIONATELY MACALINTAL’S PETITION AND URGENT MOTIONS is the Office of the Solicitor General (OSG), headed by SolGen Menardo I. Guevarra, the government’s counsel. It raised substantive and procedural issues like the failure of the petition to allege and prove “grave abuse of discretion” on the part of Congress in enacting RA 11935.

On the substantive issues, the OSG contended that Congress simply exercised its constitutionally granted police power to change the date of the barangay elections and merely allowed the incumbent barangay officials to “hold over” during the one-year deferment of the BSKE. Thus, it did not change the “term of office”; it merely allowed the incumbents to continue discharging their duties during the one-year extension of the elections.

Moreover, the “one subject one title” rule under the Constitution was not violated because the three subjects are interrelated. It also argued that Congress was within its rights and powers to postpone the elections, given the COVID restrictions and the fact that a presidential election was held just half a year prior to the December 2022 BSKE.

UPHOLDING FREEDOM OF SPEECH, jurisprudence allows fair comment on pending public interest cases provided they are truthful, respectful, free of personal attacks, and made in good faith. However, the parties and their lawyers are allowed to argue only within the judicial enclave and are barred from using the public fora to explain, advance, or defend their causes.

In the meantime, however, without delving into the merits, I will limit my comments to the need for the Court to resolve within this month the urgent motions of Macalintal for a TRO or SQA. Their resolution would guide the Comelec (and the electorate) in its preparations for a possible election in May 2023.

What will be tragic would be for the Court to procrastinate and just let time pass by, thereby allowing the petition to become academic, despite the vital constitutional issues raised. Any delay would be unreasonable given the extensive oral argument conducted and the written memoranda already submitted by the parties. In fact, I believe the Court could even issue a full decision by the end of this month.

TO CLOSE THIS COLUMN, I have enough space to tackle very briefly SAJ Leonen’s proposed writ of kalayaan. I do not doubt its laudable intention to liberate jail inmates from excessive detention and/or from suffering the inhuman conditions in our penitentiaries. However, a retired colleague texted me, and I respectfully agree, that constitutional writs (like habeas corpus or habeas data) are designed to enforce constitutional rights that are self-executory without need of legislation. Other rights, like the right to health care, need legislation to define their parameters and fund their implementation. Though the intended purpose can also be attained by other remedies like mandamus, the Court, IMHO, can still issue the writ if Congress will enact an enabling legislation.

I will take up the other public interest cases later.

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